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A STAFF REPORT TO THE NATIONAL 

COMMISSION ON THE CAUSES AND, 

PREVENTION OF VIOLENCE / 

PREPARED BY / 

James S. Campbell / 
Joseph R. Sahid / 




The White House 

June 10, 1968 
EXECUTIVE ORDER #11412 

ESTABLISHING A NATIONAL COMMISSION ON 
THE CAUSES AND PREVENTION OF VIOLENCE 

By virtue of the authority vested in me as President of the United States, it 
is ordered as follows: 

SECTION 1. Establishment of the Commission, (a) There is hereby 
established a National Commission on the Causes and Prevention of Violence 
(hereinafter referred to as the "Commission"). 

(b) The Commission shall be composed of: 

Dr. Milton Eisenhower, Chairman 

Congressman Hale Boggs Senator Roman Hruska 

Archbishop Terence J. Cooke Albert E. Jenner, Jr. 

Ambassador Patricia Harris Congressman William M. McCuDoch 

Senator Philip A. Hart *Dr. W. Walter Menninger 

Judge A. Leon Hjgginbotham *Judge Ernest William McFarland 

Erk Hoffer *Leon Jaworski 

SECTION 2. Functions of the Commission. The Commission shall 
investigate and make recommendations with respect to: 

(a) The causes and prevention of lawless acts of violence in our society, 
including assassination, murder and assault; 

(b) The causes and prevention of disrespect for law and order, of 
disrespect for public officials, and of violent disruptions of public order by 
individuals and groups; and 

(c) Such other matters as the President may place before the Commis- 
sion. 

SECTION 4. Staff of the Commission. 

SECTION 5 . Cooperation by Executive Departments and Agencies. 

(a) The Commission, acting through its Chairman, is authorized to 
request from any executive department or agency any information and 
assistance deemed necessary to carry out its functions under this Order. Each 
department or agency is directed, to the extent permitted by law and within 
the limits of available funds, to furnish information and assistance to the 
Commission. 

SECTION 6. Report and Termination. The Commission shall present its 
report and recommendations as soon as practicable, but not later than one 
year from the date of this Order. The Commission shall terminate thirty days 
following the submission of its final report or one year from the date of this 
Order, whichever is earlier. 

S/Lyndon B. Johnson 
* Added by an Executive Order June 21 , 1968 



The White House 

May 23, 1969 
EXECUTIVE ORDER #11469 

EXTENDING THE LIFE OF THE NATIONAL COMMISSION 
ON THE CAUSES AND PREVENTION OF VIOLENCE 

By virtue of the authority vested in me as President of the United States, 
Executive Order No. 1 1412 of June 10, 1968, en titled "Establishing a National 
Commission on the Causes and Prevention of Violence," is hereby amended 
by substituting for the last sentence thereof the following: "The Commission 
shall terminate thirty days following the submission of its final report or on 
December 10, 1969, whichever is earlier." 

S/ Richard Nixon 



LAW AND ORDER 
RECONSIDERED 



Report of the Task Force on 
Law and Law Enforcement 

To 
The National Commission 

on the Causes and 
Prevention of Violence 



JAMES S. CAMPBELL 
JOSEPH R. SAHID 
DAVID P. STANG 



NATIONAL COMMISSION 
ON THE CAUSES AND PREVENTION OF VIOLENCE 



For sale by the Superintendent of Documents. U.S. Government Printing Office 
Washington. D.C. 20402 Price $2.50 



From the collection of the 



2 n 

Prelinger 

v JLjibrary 

p 



San Francisco, California 
2006 



Official editions of publications of the National Commission on 
the Causes and Prevention of Violence may be freely used, dupli- 
cated or published, in whole or in part, except to the extent that, 
where expressly noted in the publications, they contain copy- 
righted materials reprinted by permission of the copyright 
holders. Photographs may have been copyrighted by the owners, 
and permission to reproduce may be required. 



STATEMENT ON THE STAFF STUDIES 



The Commission was directed to "go as far as man's knowl- 
edge takes" it in searching for the causes of violence and the 
means of prevention. These studies are reports to the Commis- 
sion by independent scholars and lawyers who have served as 
directors of our staff task forces and study teams ; they are not 
reports by the Commission itself. Publication of any of the re- 
ports should not be taken to imply endorsement of their contents 
by the Commission, or by any member of the Commission's staff, 
including the Executive Director and other staff officers, not 
directly responsible for the preparation of the particular report. 
Both the credit and the responsibility for the reports lie in each 
case with the directors of the task forces and study teams. The 
Commission is making the reports available at this time as works 
of scholarship to be judged on their merits, so that the Com- 
mission as well as the public may have the benefit of both the 
reports and informed criticism and comment on their contents. 




Dr. Milton S. Eisenhower 
Chairman 



iii 



TASK FORCE DIRECTORS 

James S. Campbell 
Joseph R. Sahid 
David P. Stang 



COMMISSION STAFF OFFICERS 

Lloyd N. Cutler 
Executive Director 

Thomas D. Barr 
Deputy Director 

James F. Short, Jr. 

Marvin E. Wolfgang 

Co-Directors of Research 

James S. Campbell 
General Counsel 

William G. McDonald 
Administrative Officer 

Joseph Laitin 
Director of Information 

Ronald Wolk 
Special Assistant to the Chairman 



NATIONAL COMMISSION 

ON THE CAUSES AND 
PREVENTION OF VIOLENCE 

Milton S. Eisenhower 
Chairman 



iv 



ACKNOWLEDGEMENTS 

We are principally indebted to the dozens of scholars, prac- 
ticing lawyers and other willing persons whose generous efforts, 
added on to already busy schedules, have made this Report 
possible. The names of those who have participated in the prepa- 
ration of this Report are listed on pages 599 to 605 in three 
categories: contributors, consultants, and advisors. 

Contributors are those whose papers appear as chapters (or 
as the principal source of a chapter) in the Report. Contribu- 
tors are also credited at the beginning of the particular chapters 
for which they are responsible. 

Consultants are those who submitted research papers which 
served as the building blocks for chapters or as important back- 
ground pieces. Many of these are also credited at the beginning 
of the relevant chapters. 

Advisors are those who provided assistance to us in evaluating 
and reviewing various chapters in draft form. 

We are also in the debt of a research staff of devoted workers, 
led by Dale L. Smith, who spent long hours in libraries and 
on the phone conducting interviews, verifying source materials, 
and searching for hard-to-find facts. Their names appear on 
page 606. 

We especially appreciate the contributions of Carol A. 
Honus and our other secretaries who typed, retyped and kept 
track of a tremendous volume of material of which this book is 
only the ultimate distillation. Their names also appear on 
page 606. 

We wish to acknowledge the contribution of George L. Saun- 
ders, Jr., who led the Task Force during its early months and 
helped lay a foundation for its later work. Acknowledgement is 
also due to Leroy D. Clark for his assistance during this period. 

Finally, we wish to thank all the Staff Officers of the 
Commission for their help, and especially to mention the inval- 
uable assistance of Lloyd N. Cutler, the Commission's Executive 
Director, who took the time to review the several drafts of 
our Report, to offer many helpful suggestions, and to provide 
us with encouragement and support at all times. 

As the planners and editors of this Report, we alone bear the 
responsibility for its final form, and all those who contributed 
to it are fully entitled to refer blame for its errors to our 
own wrong-headedness or oversight. 

James S. Campbell 
Joseph R. Sahid 
David P. Stang 



PREFACE 



From the earliest days of organization, the Chairman, Commissioners, 
and Executive Director of the National Commission on the Causes and 
Prevention of Violence recognized the importance of research in accomplish- 
ing the task of analyzing the many facets of violence in America. As a 
result of this recognition, the Commission has enjoyed the receptivity, 
encouragement, and cooperation of a large part of the scientific community 
in this country. Because of the assistance given in varying degrees by scores 
of scholars here and abroad, these Task Force reports represent some of the 
most elaborate work ever done on the major topics they cover. 

The Commission was formed on June 10, 1968. By the end of the month, 
the Executive Director had gathered together a small cadre of capable young 
lawyers from various Federal agencies and law firms around the country. 
That group was later augmented by partners borrowed from some of the 
Nation's major law firms who served without compensation. Such a pro- 
fessional group can be assembled more quickly than university faculty 
because the latter are not accustomed to quick institutional shifts after 
making firm commitments of teaching or research at a particular locus. 
Moreover, the legal profession has long had a major and traditional role in 
Federal agencies and commissions. 

In early July a group of 50 persons from the academic disciplines of 
sociology, psychology, psychiatry, political science, history, law, and biology 
were called together on short notice to discuss for two days how best the 
Commission and its staff might proceed ot analyze violence. The enthusiastic 
response of these scientists came at a moment when our Nation was still 
suffering from the tragedy of Senator Kennedy's assassination. 

It was clear from that meeting that the scholars were prepared to join 
research analysis and action, interpretation, and policy. They were eager to 
present to the American people the best available data, to bring reason to 
bear where myth had prevailed. They cautioned against simplistic solutions, 
but urged application of what is known in the service of sane policies for the 
benefit of the entire society. 

Shortly thereafter the position of Director of Research was created. We 
assumed the role as a joint undertaking, with common responsibilities. Our 
function was to enlist social and other scientists to join the staff, to write 
papers, act as advisers or consultants, and engage in new research. The 
decentralized structure of the staff, which at its peak numbered 100, required 
research coordination to reduce duplication and to fill in gaps among the 
original seven separate Task Forces. In general, the plan was for each Task 
Force to have a pair of directors: one a social scientist, one a lawyer. In a 
number of instances, this formal structure bent before the necessities of 
available personnel but in almost every case the Task Force work program 
relied on both social scientists and lawyers for its successful completion. In 
addition to our work with the seven original Task Forces, we provided con- 
sultation for the work of the eighth "Investigative" Task Force, formed 
originally to investigate the disorders at the Democratic and Republican 
National Conventions and the civil strife in Cleveland during the summer of 



1968 and eventually expanded to study campus disorders at several colleges 
and universities. 

Throughout September and October and in December of 1968 the Com- 
mission held about 30 days of public hearings related expressly to each of 
the Task Force areas. About 100 witnesses testified, including many scholars, 
Government officials, corporate executives as well as militants and activists 
of various persuasions. In addition to the hearings, the Commission and the 
staff met privately with scores of persons, including college presidents, 
religious and youth leaders, and experts in such areas as the media, victim 
compensation, and firearms. The staff participated actively in structuring 
and conducting those hearings and conferences and in the questioning of 
witnesses. 

As Research Directors, we participated in structuring the strategy of 
design for each Task Force, but we listened more than directed. We have 
known the delicate details of some of the statistical problems and computer 
runs. We have argued over philosophy and syntax; we have offered bibliog- 
raphical and other resource materials, we have written portions of reports 
and copy edited others. In short, we know the enormous energy and devotion, 
the long hours and accelerated study that members of each Task Force have 
invested in their labors. In retrospect we are amazed at the high caliber and 
quantity of the material produced, much of which truly represents, the best 
in research and scholarship. About 150 separate papers and projects were 
involved in the work culminating in the Task Force reports. We feel less that 
we have orchestrated than that we have been members of the orchestra, and 
that together with the entire staff we have helped compose a repertoire of 
current knowledge about the enormously complex subject of this Commission. 
That scholarly research is predominant in the work here presented is 
evident in the product. But we should like to emphasize that the roles which 
we occupied were not limited to scholarly inquiry. The Directors of Research 
were afforded an opportunity to participate in all Commission meetings. We 
engaged in discussions at the highest levels of decision-making and had great 
freedom in the selection of scholars, in the control of research budgets, and 
in the direction and design of research. If this was not unique, it is at least 
an uncommon degree of prominence accorded research by a national 
commission. 

There were three major levels to our research pursuit: (1) summarizing 
the state of our present knowledge and clarifying the lacunae where more or 
new research should be encouraged; (2) accelerating known ongoing research 
so as to make it available to the Task Forces; (3) undertaking new research 
projects within the limits of time and funds available. Coming from a 
university setting where the pace of research is more conducive to reflection 
and quiet hours analyzing data, we at first thought that completing much 
meaningful new research within a matter of months was most unlikely. But 
the need was matched by the talent and enthusiasm of the staff, and the Task 
Forces very early had begun enough new projects to launch a small univer- 
sity with a score of doctoral theses. It is well to remember also that in each 
volume here presented, the research reported is on full public display and 
thereby makes the staff more than usually accountable for their products. 

One of the very rewarding aspects of these research undertakings has 
been the experience of minds trained in the law mingling and meshing, 
sometimes fiercely arguing, with other minds trained in behavioral science. 
The organizational structure and the substantive issues of each Task Force 
required members from both groups. Intuitive judgment and the logic of 
argument and organization blended, not always smoothly, with the methodol- 
ogy of science and statistical reasoning. Critical and analytical faculties 
were sharpened as theories confronted facts. The arrogance neither of 
ignorance nor of certainty could long endure the doubts and questions of 
interdisciplinary debate. Any sign of approaching the priestly pontification 

viii 



of scientism was quickly dispelled in the matrix of mutual criticism. Years 
required for the normal accumulation of experience were compressed into 
months of sharing ideas with others who had equally valid but differing 
perspectives. Because of this process, these volumes are much richer than 
they otherwise might have been. 

Partly because of the freedom which the Commission gave to the Directors 
of Research and the Directors of each Task Force, and partly to retain the 
full integrity of the research work in publication, these reports of the Task 
Forces are in the posture of being submitted to and received by the Commis- 
sion. These are volumes published under the authority of the Commission, 
but they do not necessarily represent the views or the conclusions of the 
Commission. The Commission is presently at work producing its own report, 
based in part on the materials presented to it by the Task Forces. Commis- 
sion members have, of course, commented on earlier drafts of each Task 
Force, and have caused alterations by reason of the cogency of their remarks 
and insights. But the final responsibility for what is contained in these 
volumes rests fully and properly on the research staffs who labored on them. 

In this connection, we should like to acknowledge the special leadership of 
the Chairman, Dr. Milton S. Eisenhower, in formulating and supporting the 
principle of research freedom and autonomy under which this work has 
been conducted. 

We note, finally, that these volumes are in many respects incomplete and 
tentative. The urgency with which papers were prepared and then integrated 
into Task Force Reports rendered impossible the successive siftings of data 
and argument to which the typical academic article or volume is subjected. 
The reports have benefited greatly from the counsel of our colleagues on the 
Advisory Panel, and from much debate and revision from within the staff. It 
is our hope, that the total work effort of the Commission staff will be the 
source and subject of continued research by scholars in the several dis- 
ciplines, as well as a useful resource for policy-makers. We feel certain that 
public policy and the disciplines will benefit greatly from such further work. 



To the Commission, and especially to its Chairman, for the opportunity 
they provided for complete research freedom, and to the staff for its prodi- 
gious and prolific work, we who were intermediaries and servants to both, 
are most grateful. 



James F. Short, Jr. Marvin E. Wolfgang 

Directors of Research 



IX 



CONTENTS 



Page 

Introduction xix 

PART ONE THE RULE OF LAW _ 1 

Chapter 1 The Rule of Law _ 3 

The Evolution of Social Order _ 3 

The Nature of the Rule of Law 5 

The Rule of Law in America Today 8 

Chapter 2 Disobedience to Law 13 

The American Ideal 14 

Our Contemporary Discontents 15 

Moral Justifications for Disobedience to Law: 

The Needs of the Individual 17 

The Problem of Contagion: The Needs of Society 19 

Conclusion 22 

PART TWO INSTITUTIONS OF THE POLITICAL 

AND SOCIAL ORDER 25 

Chapter 3 Law and the Grievances of the Poor _ 27 

The Poor and the Bureaucracy _ 30 

The Courts and the Poor 34 

The Right to Counsel __. 37 

Conclusion _ 44 

Chapter 4 Government and the "Forgotten Man." 53 

Who is the Forgotten Man? _ 54 

Profile of the Forgotten Man 56 

Portraits of the Forgotten Man _ 58 

Attitudes of the Forgotten Man : Historical Sources 66 

Attitudes of the Forgotten Man : Personal Sources _ 70 

The Forgotten Man's Case Against Government _ 73 

Conclusion . 75 

Chapter 5 American Society and the Radical Black 

Militant 81 

The Nature of Radical Black Militancy __. 81 

xi 



Page 

Cultural Autonomy 82 

Political Autonomy 83 

Self-Defense 84 

Underlying Causes of Radical Black Militancy _ 85 

The Institution of Slavery _ 86 

Segregation in the Aftermath of Slavery _ 88 

The Rise of the Urban Ghetto _ 90 

Direct Causes of Radical Black Militancy _ 92 

The Political Cause _ 92 

The Ideological Cause _ 96 

The Economic Cause _ 99 

The Psychological Cause _ 105 

Responses to Radical Black Militancy _ 108 

Chapter 6 The Responsiveness of Local Government _ 113 

The Shortcomings of the Municipal Reform 

Movement 114 
The Movement for Citizen Participation and 

Community Control _ 117 
The Movement for Modernization and Consolidation. 118 

Political Efficacy and Trust _ 122 

Efficacy, Trust and Citizen Participation _ 125 

Conclusion _ 127 

Chapter 7 The Electoral Process and the Public Will _ 131 

The National Nominating Convention _ 131 

The Political Campaign _ 142 

The Election _ 151 

Conclusion _ 157 

Chapter 8 Congress and the Public Will _ 161 

Seniority and the Committee System _ 163 

The Senate Filibuster _ 167 

The Lobby ___ 170 

Congressional Reforms _ 172 

Conclusion _ 174 

Chapter 9 The Family and Violence _ 177 

Formation of the Child's Moral Personality _ 178 

Socialization in the Family _ 181 

Conflicts in the Socialization Process _ 183 

What Can Be Done? _ 187 

Chapter 10 The Public School and the Children of 

Poverty 191 

Public Education Today _ 192 

xii 



Page 

The Challenge to American Education _ 195 

Conclusion _ 199 

Chapter 11 The Church and the Urban Crisis _ 201 

Lack of "Relevance" To Whom? _ 202 

The Church as Bridge-Builder _ 204 

National Consensus : Pluralism and Ecumenism _ 207 

Conclusion _ 209 

Chapter 12 The Reform of the University _ 211 

Campus Unrest and Its Causes _ 212 

The Need for Reform _ 217 

Undergraduate Teaching _ 217 

Student Life _ 218 

The University's Role in Society _ 220 

The University Tradition in America 221 

American Higher Education _ 225 

University Governance _ 231 

Conclusion 234 

A Portfolio of Lithographs on Crime and Violence 235 

PART THREE THE AGENCIES OF LAW 

ENFORCEMENT . ___ 263 

Chapter 13 The Nonsystem of Criminal Justice _ 265 / 

The System : Theory vs. Practice _ 266 ^ 

Criminal Sanctions as a Solution to Urban Problems 270 

Scope of Sanctions 270 

Relationship to Civil Programs 271 

Guidelines for Criminal Justice Reform _ 273 

The Criminal Justice Agency _ 275 

Private Citizen Involvement . 278 

National Criminal Justice Consulting Center 279 

Local Citizen Organizations . 281 

Conclusion _ 284 

Chapter 14 The Police and Their Problems _ 285 

Duties of the Police _ 286 

Manpower Limitations _ 286 

Financial Limitations _ 287 
Police Conflicts With Other Criminal Justice 

Agencies 288 

Police Role Conflicts _ 290 

Police Ineffectiveness _ 292 

Police Politicization _ 293 

Some Suggested Solutions _ 295 

xiii 



Page 

The Police and Political Violence 295 

The Patrolman and the People _ 296 

Improving Police-Community Relations _ 298 

Minority Recruitment 304 

Conclusion . 305 

Chapter 15 Official Responses to Mass Disorder I: 

Current Social Control _ 309 

Major Problems of Riot Control 309 

Civil Disorders Commission Recommendations _ 313 
Progress Since Civil Disorders Commission Report _ 316 

The National Guard _ 318 

Local Law Enforcement Authorities 322 

The Role of the Private Individual _ 325 
The Problem of Manpower and Effective Response _ 326 

Public Safety Radio Communication _ 329 

Conclusion 330 

Chapter 16 Official Response to Mass Disorder II : 
The Circuit of Violence A Tale of 

Two Cities __ 333 

The Dynamics of Polarization _ 334 

Case Study I : The Labor Movement _ 340 
Case Study II : Chicago and Washington A Tale 

of Two Cities _ 343 

A Program for the Future _ 351 

A Proposed Federal Remedy _ 360 

Chapter 17 Securing Police Compliance With Con- 
stitutional Limitations: The Exclu- 
sionary Rule and Other Devices _ 365 

The Exclusionary Rule _ 366 

Damage Remedies Under State Law 370 

Damage Remedies Under Federal Law _ 375 

Injunction 379 

Criminal Sanctions _ 381 

Internal Review 383 

Civilian Review Boards _ 386 

The Ombudsman _ 391 

Conclusion and Recommendations 392 

Chapter 18 Citizen Involvement in Law Enforcement _ 411 

The Indianapolis Experience _ 411 

The Danger of Vigilantism _ 413 

The Informed Citizen _ 413 



XIV 



Page 

Citizen 'Programs _ 415 

The Involvement of the Individual _ 422 

Conclusion _ 424 

Chapter 19 The Bail Problem : Release or Detention 

Before Trial _ 427 

The Origins of Money Bail 427 

Bail Today 430 

Bail and the Poor _ 430 

Bail and the Unpopular _ 432 

The Bondsman 433 

Its Effect on the Administration of Justice _ 435 

Alternatives to Bail 437 

Release on Personal Recognizance _ 437 

Summons ^40. 

The Bail Reform Act of 1966 - 442^ 

Its Promise 442 

Its Problems _ 444 

The Problem of Dangerousness : Some Proposed 

Solutions 448 

Conclusion 458 

Appendix: Proposed Legislation 459 

Chapter 20 The Constitution and Rights of the Accused 469 

The View of the Critics 469 
Miranda and Its Antecedents 471 
The Impact of the Miranda Interrogation Rules 475 
"Voluntariness" and Police Interrogation - 480 
Equal Protection in the Station House _ 484 
The Privilege Against Self-Incrimination : Be- 
ginning of a Reexamination _ 485 
Judge Friendly's Amendment _ 493 
Summary and Conclusion 499 

Chapter 21 -Court Management and the Administra- 
tion of Justice _ 509 

What Is Court Management? 510 
Court Management Today _ 511 
Putting Effective Management Into the Admin- 
istration of Justice 513 
American Bar Association Special Com- 
mittee on Standards for the Administra- 
tion of Criminal Justice 514 



Page 
Seed Money For the Reform of Courts 

National Court Assistance Act 516 
Court Management, 1970-75: A Suggested 

Agenda for Public Policy _ 518 
Court Executives _ 518 
Court Studies . 519 
Law Schools and Centers for Administra- 
tion of Justice _ 521 
Bar Associations 522 
Laymen and Legislators _ 522 
Conclusion . 523 



Chapter 22 The Administration of Justice Under 

Emergency Conditions _ 527 

Arrest to First Court Appearance _ 529 

The Mass Civil Disorder _ 529 

The Mass Political Demonstration _ 531 

The Kerner Commission Recommendations _ 531 

First Court Appearance _ 532 

The Mass Civil Disorder 532 

The Mass Political Demonstration _ 535 

Initial Charging _ 536 

The Mass Civil Disorder 536 

The Mass Political Demonstration 537 

Bail _ 538 

The Mass Civil Disorder _ 538 

The Mass Political Demonstration __ 542 

First Court Appearance (Including Charging 

and Bail) : Recommendations __ 543 

After the Emergency: The Disposition of the 

Prosecutions _ 544 

Recommendations 546 

Conclusion . 547 



Chapter 23 The Problem of Overcriminalization _ 551 

Three Categories of Overcriminalization 552 

The Costs of Overcriminalization _ 554 

The Consequences of Repeal _ 557 

The Morals Statutes _ 557 

The Illness Statutes 558 

The Nuisance Statutes _ 561 

Conclusion _ 566 



XVI 



Page 

Chapter 24 Problems of the Corrections System - 571 

The Inability of Corrections to Correct 572 / 

The Horror of Corrections 576 

Cruel Punishment and the Failure of the Courts 585 

Alternatives to Incarceration _ 587 

Rehabilitation Programs in Institutions _ 591 

Conclusion 595 

Task Force on Law and Law Enforcement: Contributors, 

Consultants, Advisers, and Staff 599 



"Man's effort to control violence has been one part, a major 
part, of his learning to live in society. The phenomenon of 
violence cannot be understood or evaluated except in the context 
of that larger effort." From the Progress Report of the National 
Commission on the Causes and Prevention of Violence. 



INTRODUCTION 



Violence is the breakdown of social order. Social order is 
maintained, and violence is prevented, by the effective func- 
tioning of society's primary legal, political and social institu- 
tions, including, among others, the agencies of law enforcement. 

More than 150 years ago, Thomas Jefferson observed that 
"laws and institutions must go hand in hand with the progress 
of the human mind. ... As new discoveries are made, new truths 
disclosed, and manners and opinions change with the change 
in circumstances, institutions must advance also, and keep pace 
with the times." 

At no time in America's history is Jefferson's observation 
more true than today. Industrialized, technologized and com- 
puterized; urbanized, plasticized and depersonalized; pluralistic, 
alienated and frustrated, America today must look to its institu- 
tions legal, political, social, educational, and religious to 
preserve its inheritance by changing to meet its changing 
needs. 

To maintain social order, the law must be rational, wise, and 
reasonably consensual; so, too, must the instiutions of family, 
church, school, university, and government which undergird the 
law's credibility and support its confidence. As Benjamin Dis- 
raeli said, individuals may form communities, but only institu- 
tions can make a nation. By his institutions and the rules they 
make, man collectively solves his problems and civilizes his world. 

This Report considers the extent to which weaknesses in 
our institutions and our laws are causing the violence in today's 
America, and it suggests some of the ways in which we may 
prevent violence by repairing these weaknesses. 

The following excerpts indicate some of the major themes 
of our Report. 



PART ONE THE RULE OF LAW 
Chapter 1. The Rule of Law 

"Increasingly, our institutions are handled with a profound 
impatience over their shortcomings and, perhaps, an inadequate 
appreciation of their virtues. Change is valued over order, free- 



dom over control. Legitimacy, the entitlement to rule, has to 
be earned, almost daily, and earned in the face of ever-increasing 
standards of performance. 

"From this understanding . . . two important and obvious 
lessons can be learned for the maintenance of social order in 
America. First, social order in America requires that our social 
and political institutions be able to regenerate themselves and 
respond more effectively to the discontents of the groups within 
our society who are currently pressing their claims upon the 
larger public. Second, social order in America requires a mod- 
ern system of criminal justice which will effectively control 
increasing levels of deviant behavior in a manner consistent 
with our ideas of fair and humane treatment." 

Chapter 2. Disobedience to Law 

"Out of the widening protest, one disturbing theme has re- 
peatedly appeared. Increasingly those who protest speak of civil 
disobedience or even revolution as necessary instruments of ef- 
fecting needed social change, charging that the processes of 
lawful change built into the system are inadequate to the task. 

"The American response to this disobedience to law to 
events which are contrary to our fundamental beliefs about 
the mode of social and political change has been ambivalent. 
The reason lies in the fact that the American people are going 
through a crisis of conscience. The issues in whose name violence 
has been committed have deeply disturbed and divided the 
American people. The tactics of the demonstrators have en- 
countered angry opposition, but many Americans continue to 
sympathize with some or all of the goals sought by the dem- 
onstrators." 

PART TWO INSTITUTIONS OF THE POLITICAL 
AND SOCIAL ORDER 

Chapter 3. Law and the Grievances of the Poor 
"The poor have, if anything, more legal problems than the 
rest of society. The recent surge of efforts on their behalf only 
emphasizes the terrible needs yet unmet in our civil justice 
system. They make only a long-delayed beginning; new ways 
and more lawyers are desperately needed. Long-range strate- 
gems to reform laws and institutions that work unfairly against 
the poor must be simultaneously pursued along with justice in 
individual cases. More counsel for the poor is basic, the sine 
qua non. Court costs should be abolished. The poor need legal 
redress for their legal grievances; to be poor is bad enough; 
to be poor and denied justice is intolerable." 

Chapter 4. Government and the "Forgotten Man" 
"The Forgotten Man is the man in the middle, in the majority, 

XX 



the ordinary guy for whom exceptions are not made. He is 
neither so poor that the government thinks it must try to rescue 
him, nor so rich that he can exercise independent power. He is 
unorganized, so that he is (and more important, feels he is) 
alone in his dealings with government. . . . 

"Generalities about government being of, for, and by the peo- 
ple do not comfort the Forgotten Man when he sees the same 
government that socked him with a severe penalty for late 
payment of part of his $2,403.16 income tax, now forgive a 
million-dollar defaulter for 10^ on the dollar (and issue a press 
release bragging about it), or when he sees his taxes apparently 
going to support minorities who rant and riot in protest over 
his more privileged way of life. 

"As the receptive potential audience for racists, super-patri- 
ots, and ultra-vigilantes, the Forgotten Man can bolster or de- 
tract from the significance of their violence-supporting activities. 
With his massive numbers, the Forgotten Man is the key to 
their power." 

Chapter 5. American Society and the Radical Black Militant 
"The radical black militant who attacks a policeman or bombs 
a college building is not simply a common criminal. He is indeed 
a criminal, but he is different from the burglar, the robber or 
the rapist. He is acting out of a profound alienation from society. 
He believes that the existing social and political order in America 
is not legitimate and that black people in America are being held 
in 'colonial bondage' by 'an organized imperialist force/ Thus 
he is able to interpret his act of violence not as a crime but as 
a revolutionary (or 'pre-revolutionary') act. As an isolated oc- 
currence, this distorted interpretation would not be significant 
but the interpretation is sustained by an articulated ideology 
that is today competing with traditional American values for 
the minds and hearts of the rising generation of black ghetto 
residents." 

Chapter 6. The Responsiveness of Local Government 

"The demands for increased citizen participation in the 
government of large American cities are consistent not only 
with popular conceptions of democracy, but also with recent 
social science findings which strongly suggest that accession 
to these demands would reap large dividends to society as a 
whole, particularly at the local level. The key findings of current 
thinking from political and social sciences are that the percep- 
tion of personal effectiveness in politics, or 'political efficacy/ is 
related to satisfaction with government and that a strong 
sense of political efficacy seems to be necessary to motivate per- 
sons to express their demands in conventional, nonviolent modes." 

xxi 



Chapter 7. The Electoral Process and the Public Will 
"The legitimacy of our system of government rests upon the 
people's belief that its institutions respond to their needs and 
represent their views. If the people lack confidence in the elec- 
toral system or if they feel excluded from decision-making 
processes and helplessly depend on the discretion of govern- 
mental and quasi-governmental officials, the legitimacy of the 
system stands almost certainly in serious question, making for 
political alienation in America. Can defects in the national 
electoral process convention, campaign, and election which 
may give rise to disaffection from the political system, be 
remedied?" 

Chapter 8. Congress and the Public Will 
"No feature of Congressional practices has drawn as much 
criticism as seniority. The seniority system has undoubtedly 
contributed to the unrepresentativeness of legislative leader- 
ship, because longevity in office tends to be associated with 
homogeneous, one-party districts. In the 90th Congress, for 
example, southerners comprised only about one-fifth of the 
membership of the Senate and a quarter of the membership 
of the House, yet they controlled the chairmanships of ten of 
the sixteen Senate standing committees and ten of the twenty- 
one House committees. Such men are frequently at loggerheads 
with the policies of the national party, a fact which can exacer- 
bate conflict between Congress and the Executive branch." 

Chapter 9. The Family and Violence 

"The American family has clearly lost some of its solidarity. 
. . . Once it was the source of cohesion and security, the unit of 
economic activity, the means of recreation and education. 
Today it is increasingly disrupted. Divorce rates rise, but are 
outrun by the incidence of marital conflicts. Parents, especially 
working mothers, spend more time outside the home, and tele- 
vision changes the character of family recreation. A generation 
gap widens, as young people identify more with peer groups 
in colleges, dropout communities, and street cultures than with 
their own families. 

"These changes do not necessarily signify a decline in the im- 
portance of the family. They do reflect the increasing pressures 
which the family is under but these stresses frequently stem 
precisely from the fact that more is being demanded of family 
life than ever before. Thus, as urbanization depersonalizes 
human relationships, husbands and wives become more depend- 
ent upon each other for the satisfaction of emotional needs that 
were previously met outside of the family. And, despite the 
impact of television, the family manifestly retains its central 
role in the upbringing of children." 



Chapter 10. The Public School and the Children of Poverty 
"When the school is a place where children find that they can 
be successful and can experience just treatment, they develop 
respect for law and for habits in harmony with the regulations 
of their society. But when the school is a place where children 
fail or where they experience unjust treatment, they become 
frustrated, they reject society's values, and they are more likely 
to resort to violence in an effort to solve their problems. In 
America we have both kinds of schools, and the children of 
poverty are to be found primarily in the second kind." 

Chapter 11. The Church and the Urban Crisis 
"Religious groups such as churches or parishes are probably 
the only institutions by which culturally different groups, or 
conflicting or alienated groups, may be brought to some sense 
of unity. Repeatedly in the past, the religious group has been 
able to bridge the gap between different social classes, different 
ethnic groups, different interest groups, by forging a common 
bond around common religious beliefs and practices. Thus, in 
the celebration of the liturgy, rich and poor, educated and un- 
educated, the powerful and the underprivileged, have frequently 
been able to celebrate the common beliefs in which they were one, 
despite the many differences which divided them." 

Chapter 12. The Reform of the University 
"Someone once said that no one should meddle with a uni- 
versity who does not understand it and love it. The comment was 
probably prompted by a realization that the university is a 
rather fragile institution, despite the fact that it has endured 
for a thousand years and has survived formidable threats to its 
integrity and freedom. The university is fragile because it is no 
more than people of good will committed to some very lofty 
principles : freedom, tolerance, mutual understanding, open 
communication, truth, and honesty. These are surely elusive 
principles difficult to attain, easy to lose. They are, however, 
the only things that distinguish a university from any other 
cluster of buildings inhabited by humans with all their vested 
interests and venal shortcomings. By its own actions, the uni- 
versity has compromised some of these principles. Great social 
forces working on the university have also jeopardized them. 
Now, in a righteous frenzy to reform the university, its active 
critics imperil these principles. Freedom, especially, is in dan- 
ger." 

Preface to the Portfolio of Lithographs on Crime and Violence 

"[T]he combination of reason and law from the time of its 
ancient origins has been unable to prevent jealous husbands 
from taking to fits of passion which result in the murder of 

xxiii 



their unfaithful wives. So too it has been unable to prevent Cains 
from slaying Abels, parents from maliciously beating their 
children. Nor has it been able to deter the emergence of men 
like the Marquis De Sade, Jack The Ripper, or the Boston 
Strangler. ... In a sense, then, in our applying reason and law 
to the subject of crime and violence, we are handicapped. Worse 
yet, our efforts are bounded not only by the limits of the tool we 
utilize to treat the subject, but by the pervasive, complex and 
irrepressible nature of the subject itself. We are not dealing 
with a phenomenon which has had its birth in America of the 
nineteen-sixties, but with a problem that has existed since man- 
kind was born. 

"We are here dealing with one small variation on the ageless 
theme of good and evil, of right and wrong, of love and hate. 
There is a mystery about this topic which transcends reason 
and which inescapably penetrates to the very core of the hu- 
man soul." 

PART THREE THE AGENCIES OF LAW ENFORCEMENT 

Chapter 13. The Nonsystem of Criminal Justice 

"In the mosaic of discontent which pervades the criminal proc- 
ess, public officials and institutions, bound together with private 
persons in the cause of reducing crime, each sees his own 
special mission being undercut by the cross-purposes, frailties 
or malfunctions of others. As they find their places along the 
spectrum between the intense concern with victims at one 
end, and total preoccupation with reforming convicted law- 
breakers at the other, so do they find their daily perceptions 
of justice varying or in conflict. The conflicts in turn are inten- 
sified by the fact that each part of the criminal process in most 
cities is overloaded and undermanned, and most of its personnel 
underpaid and inadequately trained. 

"Under such circumstance it is hardly -surprising to find in 
most cities not a smooth-functioning 'system' of criminal justice 
but a fragmented and often hostile amalgamation of criminal 
justice agencies. To the extent they are concerned about other 
parts of the 'system/ police view courts as the enemy. Judges 
often find law enforcement officers themselves violating the 
law. Both see correctional programs as largely a failure. Many 
defendants perceive all three as paying only lip service to indi- 
vidual rights." 

Chapter 14. The Police and Their Problems 

"A black policeman, asked why he decided to become a 
police officer, gave us this answer: 

'Man, when I was a little kid I thought cops were God. 



I lived in the ghetto and I saw drunks, addicts, cuttings, 
shootings, and husbands hitting wives and kids fighting on 
street corners and other bad scenes everyday. 

'Somebody always called the police. The police arrived 
in the middle of the hassle and were always cool and always 
got on top of the problem fast. If they could break it up 
by quiet mouthing it they would. If they had to bust some- 
body they did it quick and were gone. Whatever it was, 
they arrived on the scene, got with it fast, stopped the 
trouble and split always with a cool head. I figured that 
was smooth and so I decided when I was a kid I wanted 
to be a policeman and do the same thing/ 
"Understanding and coolheadedness these qualities represent 
the very essence of a 'good cop.' ' 

Chapter 15. Official Responses to Mass Disorder I: 
Current Social Control 

"The recent wave of urban disorders found law enforcement 
agencies ill-trained, ill-equipped and ill-prepared to deal with 
them. The Civil Disorders Commission noted these deficiencies 
and proposed measures to upgrade the levels of preparedness 
and response of these agencies. Since the Report of that Com- 
mission, significant but uneven steps have been taken to imple- 
ment these recommendations. Army and National Guard units 
now stand trained and ready to deal with domestic upheavals. 
This rapid progress has been due largely to effective staff plan- 
ning. The response of local law enforcement agencies, however, 
has lagged. Two problems adequate numbers of trained man- 
power and adequate communications have yet to be solved." 

Chapter 16. Official Responses to Mass Disorders II: 

The Circuit of Violence A Tale of Two Cities 
"The escalation of violence [at the Democratic Convention 
in Chicago] was ... a response to unfolding events. Goaded 
by a few extremists who antagonized police by jeering them, 
the police responded by indiscriminately gassing and clubbing 
large numbers of protestors. More and more protestors, angered 
at this willful violence by policemen, struck back in the only 
ways they, as upper-middle class, college-educated youths, could 
by swearing and throwing rocks. And so the escalation con- 
tinued. Demonstrators provoked policemen. Policemen provoked 
demonstrators. The circuit of violence was closed. This cycle 
was never allowed to complete itself [in the Counter-Inaugural 
Demonstration] in Washington. Provocation by demonstrators 
was met with restraint. Provocation by policemen was termi- 
nated by police and city officials who intervened quickly to 
restore discipline. As a result, escalation never took place." 

XXV 



Chapter 17. Securing Police Compliance with Constitutional 

Limitations : The Exclusionary Rule and Other Devices 
". . . [PJrimary responsibility for everyday police discipline 
must rest within the police department. Nevertheless, since 
internal review has been uniformly sluggish, some kind of 
outside pressure must be brought to bear to induce voluntary 
correction of illegal and otherwise abusive police conduct. 
. . . The civilian review boards are doomed to futility since they 
pit the aggrieved citizen against the police department in a 
formal adversary proceeding; in short, someone always wins 
and someone is always resentful. The ombudsman, on the other 
hand, shifts the focus from dispute resolution to evaluation 
of the department's grievance response mechanism. . . . What is 
needed is a hybrid of the ombudsman and the external review 
agency " 

Chapter 18. Citizen Involvement in Law Enforcement 
"When discussing the crime problem, people turn to the 
police, the government, and the courts and ask 'Why don't they 
do more?' Rarely do they ask 'What can I do?' Individual activity 
against crime usually reveals itself in sporadic bursts of indig- 
nant response to a specific act or a series of acts of crime, to 
the sensational, or to the crime that got a little too close to home 
this time. Nonetheless, the citizen can do a great deal to help 
not only the police and the community, but also himself." 

Chapter 19. The Bail Problem : Release or Detention 

Before Trial 

"Pretrial detention should not be permitted to serve as a 
substitute for an adequately staffed and efficient system of jus- 
tice. A period should be set aside for genuine experimentation 
with effective means, short of detention, for protecting the 
community from the dangerous defendant, particularly greatly 
reduced pre-trial periods and increased supervision of released 
defendants. At the same time efforts should be intensified to 
develop techniques for more accurately identifying those few 
defendants who are so dangerous to the community that they 
may not be released before trial, even for a brief period. . . . 
The government should protect citizens from acts of violence, 
but the public is not protected when defendants are detained 
or released almost at random according to either the amount of 
bail they can raise or the unsupported intuitions of the judi- 
ciary. The rights of defendants and the safety of the public 
deserve a better system." 

Chapter 20. The Constitution and Rights of the Accused 
"The charge that the Supreme Court's decisions 'cause vio- 
lence' is unwarranted, and insofar as it diverts our concern away 

xxvi 



from the real causes of violence, it is harmful to society. The 
charge that the Court's decisions materially hamper the ability 
of the agencies of the state to solve crimes and to convict those 
who commit them, lacks sufficient empirical data upon which 
to base that conclusion. We do not as yet know, for example, 
the degree to which confessions are in fact crucial to convic- 
tions. Nor have we yet had sufficient experience with the rules 
laid down in the Court's decisions in this area to judge whether 
they will have any significant impact upon the rate of confes- 
sions, given the known propensity of many arrestees to confess 
even without interrogation. 

"More importantly, even assuming that police may be less 
effective in securing convictions because of the Supreme Court 
rulings, the debate is not ended. As has been pointed out, 
each provision of the Bill of Rights was drafted expressly to 
make it more difficult to secure convictions. The more rele- 
vant question is whether the price we pay for our freedoms 
is too great to endure. Before we condemn a significant element 
of our heritage to obsolescence, we should ask whether there 
is a baby in the bath worth preserving. For it is clear that 
we could be of greater assistance to our police by appropriat- 
ing the necessary funds to finance crime laboratories, ade- 
quate prosecutorial staffs, and proper correctional treatment. 
Few indeed, are the criminals 'turned loose' on society by 
Supreme Court decisions, far fewer than those who are never 
caught in the first place." 

Chapter 21. Court Management and the Administration 

of Justice 

"When courts are properly managed, the values of efficiency, 
economy and effectiveness are joined with the values of equality, 
due process, and justice for all. The joining of such values is 
what citizens seek from public institutions in a democratic 
society. For example, genuine thoughtfulness extended to wit- 
nesses and jurors may be a small thing, but it is important 
to obtain their cooperation. Public institutions quite often lack 
that decent grace which makes a person feel positively about 
his government. Sophisticated court management with a feeling 
for all people connected with the courts, for professional values, 
for constitutional and statutory standards can, in its own way, 
be a positive factor in preventing loss of respect for law and 
for courts." 

Chapter 22. The Administration of Justice Under Emergency 

Conditions 

"Criminal justice machinery in our cities during and in the 

xvii 



wake of civil disorders and other emergency situations has 
failed to successfully deal with the physical and mechanical 
problems of handling the increased flow of arrestees and de- 
fendants. The standards of justice in the initial stages of crim- 
inal prosecutions, low in normal times, went still lower in 
emergencies, especially in the critical matters of bail and pro- 
vision of counsel." 

Chapter 23. The Problem of "Overcriminalization" 
"The criminal law is society's most drastic tool for regulating 
conduct. When it is used against conduct that a large segment 
of society considers normal, and which is not seriously harmful 
to the interests of others, contempt for the law is encouraged. 
When it is used against conduct that is involuntary and the 
result of illness, the law becomes inhumane. When it becomes 
a means for arbitrary or abusive police conduct, it can cause 
hostility, tension, and violence." 

Chapter 24. Problems of the Corrections System 
"Almost the entire emphasis of correctional critics today 
is on the inadequacy of the resources committed to prison sys- 
tems insofar as they relate to rehabilitation: the prison build- 
ings are not suited for rehabilitation, the staffs are not large 
enough nor well enough trained to accomplish rehabilitation, 
the allocation of funds expended by correctional institutions 
is not designed primarily to achieve the objective of rehabili- 
tation. All this is true, of course but there is another point as 
well. Inherent in most prisons is an environment in which 
vicious and brutal degradation of inmates regularly takes 
place." 



xviii 



PART ONE 
THE RULE OF LAW 



CHAPTER 1 
THE RULE OF LAW* 

THE EVOLUTION OF SOCIAL ORDER 

A society, whether primitive tribe or modern nation, may be 
looked upon as a complex of human institutions whose purpose 
it is to secure some measure of social order. These institutions 
may have other purposes and fill other needs; but the achieve- 
ment of order is a fundamental part of their function. 

Why is social order so universally sought by groups of men? 
A number of answers might be offered. One important answer 
is that human welfare demands, at a minimum, sufficient order 
to insure that such basic needs as food production, shelter and 
child rearing, be satisfied, not in a state of constant chaos and 
conflict, but on a peaceful, orderly basis with a reasonable level 
of day-to-day security. Ancient Mesopotamia, perhaps the first 
society that we can call civilized, arose from disciplined coopera- 
tion among men in the task of irrigating the Tigris-Euphrates 
river valley. 1 Today, the infinitely complex social order of the 
United States and the agricultural abundance it has produced 
make it possible for us to ask impatiently, for the first time in 
man's history, why it is that anyone in this country of 200 million 
people should go hungry. 

How is social order attained? It does not come naturally and 
without effort. Since man first moved into communities and at- 
tempted to cope with the exigencies of life through joint and 
collective effort, he has been faced with the fact that not all mem- 
bers can be relied on to follow the rules of the community. Even 
in the simplest, most homogeneous societies, problems of deviant 
actors within the community have appeared time and time again. 
Accordingly, social-control techniques have been developed by 
all societies, simple as well as complex, to deal with the problem 



* This chapter was written by James S. Campbell based in part on the 
research contribution of Warwick R. Furr, Esq., Kirkland, Ellis, Hodson, 
Chaffetz & Masters, Washington, D.C. , 



4 Report of the Task Force on Law and Law Enforcement 

of disruptions of the community order and degradations of com- 
munity values. 

Social control techniques vary from society to society, depend- 
ing upon the range of needs and stage of development of each 
society. In primitive societies, social order may result in large 
measure from a homogeneity of basic values, reinforced by strong 
kinship systems, tribal rites, taboos, and commonly accepted 
religious beliefs. A highly formalized legal structure thus may 
not be necessary or even possible. 

In the nomadic Eskimo culture, for example, the demands of 
survival in a harsh environment may effectively foreclose the 
development of detailed, structured political systems with in- 
stitutionalized legal machinery. The basic unit of government is 
the family, because the basic unit of economic activity is the 
family ; and magic and religion, rather than formal legal institu- 
tions, regulate most behavior. 2 Similarly, other primitive so- 
cieties, such as the Trobriander Islanders, achieve social order 
primarily through the dominant role of clan-kinship systems, 
reinforced by custom and by generally held religious beliefs. Al- 
though in such cases there would appear to exist the leisure time 
necessary to develop more formalized governmental structures 
with concomitant law-making and law-enforcing institutions, ap- 
parently such structures do not develop because the homogeneity 
of values allows the existing system to work fairly well with a 
minimum of friction and disorder. 3 Where deviant behavior 
occurs in primitive societies, simple techniques, such as ostracism 
of the offender from the tribe, may be adequate to maintain 
order. 4 

Even in societies which have evolved far beyond the primitive 
stage, the institutions of family and religion may predominate 
over strictly legal institutions in the process of attaining social 
order. In pre-Communist China, for example, the family clan 
retained a central role in social ordering because of its utility in 
stabilizing the neighborhood and in facilitating the work of local 
administrators. 5 In the international society of medieval Chris- 
tendom, it was the Church that primarily determined the 
form of the social order. 6 

As societies grow more complex, however, methods of obtain- 
ing social order, settling disputes and reinforcing key social 
norms tend to become more complex, highly structured, and im- 
personal. Highly formalized legal institutions tend to supplant 
traditional institutions as the primary means of maintaining 
order. 7 There are many reasons for this change. 

For one thing, consensus, the shared belief in basic norms, 
becomes more difficult to achieve as a society becomes more 
diverse. The loss of dialogue between citizens holding different 
jobs and living in different neighborhoods is a product of social 



The Rule of Law 5 

evolution which leads to a decline of community consensus. Addi- 
tionally, the modern phenomenon of extreme geographic mobility 
coupled with urbanization, reduces the effectiveness of commu- 
nity consensus as an element of social order. The opprobrium of 
community disapproval to unacceptable and disruptive conduct, 
found in the small town, is no longer a realistic means of social 
control in the anonymity of the urban center, where people 
come and go with a minimum of long-term neighbrohood con- 
tacts. 

Many other desirable, or at least necessary, features of modern 
life operate to weaken (though by no means wholly to eliminate) 
the social-control function of traditional institutions. Thus, the 
existence of public schools and compulsory attendance laws, 
juvenile courts, the draft, and the impact of mass media, all 
contribute to and reflect a lessening of family discipline as an 
ordering influence. The notion of a "wall of separation" between 
Church and State represents for many a cherished political belief, 
but at the same time, it must be recognized, something of an 
implicit discounting of organized religion's importance in insur- 
ing stability of the social order. 

The discussion could be prolonged but the basic point is clear 
enough: when a society becomes highly complex, mobile, and 
pluralistic; the beneficiary, yet also the victim, of extremely 
rapid technological change; and when at the same time, and 
partly as a result of these factors, the influence of traditional 
stabilizing institutions such as family, church, and community 
wanes, that society of necessity becomes increasingly dependent 
on highly structured, formalistic systems of law and government 
to maintain social order. 

In large measure, this is a picture of contemporary American 
society. We have moved, through a process of social evolution, 
to a stage where our formal legal institutions and procedures 
necessarily occupy a preeminent position in the preservation of 
social order. We have traveled too far, we are too diverse, too 
complex to rely as heavily as we have on traditional institutions 
to perform the functions of social control. For better or worse, 
we are by necessity increasingly committed to our formal legal 
institutions as the paramount agency of social control. 

THE NATURE OF THE RULE OF LAW 

Most of us are generally familiar with the operation of the 
major elements of the criminal justice process police, courts, 
and corrections and we are well aware of the roles played by 
at least the more visible legal institutions of Federal and State 
government President and Congress, Governor and legislature. 
Less often, however, do we reflect upon a more fundamental kind 



6 Report of the Task Force on Law and Law Enforcement 

of question : what is it about these institutions that enables them 
to perform the function of maintaining social order? What makes 
them able "to insure domestic tranquility" and, conversely, what 
makes them fail? This is a difficult, complicated question, but the 
violence and disorder in America today require us to reflect 
upon it. 

One answer is that the institutions of law and government 
r^amtain order and control deviant behavior primarily through 
force, through the forcible apprehension and incarceration of 
offenders, and the deterrent effect on others produced by the 
omnipresent threat of such action. It has been said : 

The really fundamental sine qua non of law in any society 
primitive or civilized is the legitimate use of coercion by 
a socially authorized agent. 8 

It seems clear enough that the institutions of social control 
function in part in this way. Yet lately it has been fashionable 
to minimize the unpleasant truth that a society must often in- 
deed, routinely resort to force to maintain the orderly processs 
upon which the welfare of all its members depends. The need of 
a society for a police force and an army says something about 
human nature that many do not want to hear. 

Even among social scientists, there has been much skepticism 
about the proposition that "negative sanctions" significantly af- 
fect conformity or deviance from society's norms, and some 
sociologists and psychologists have gone so far as to take the 
position that legal punishment for criminal behavior is at best 
irrelevant and at worst a barbaric anachronism. 9 This tendency 
has been attributed in part to the current disrepute of the "clas- 
sical" school of criminology, which viewed human beings as se- 
lecting certain courses of conduct on the basis of a rational cal- 
culation of the pleasure or pain likely to result from the conduct 
and in part to uncautious generalization from the research 
findings that capital punishment does not act as an effective de- 
terrent to murder. 10 Also, it^ jsj/vejL known. Jbhat imprisonment 
often fails to prevent furtri^r^criminal behavior, but this fact 
does not provide any evidence one way or the other on the ques- 
tion of whether the likelihood of punishment serves as a deter- 
rent to potential offenders who have not yet been punished or 
caught in a criminal act. 11 

Recent studies indicate that the deterrent effect of swift, cer- 
tain application of sanctions may be underestimated. An inten- 
sive study of parking violators at a midwestern university, before 
and after more stringent regulations and enforcement policies 
were imposed, found a significant reduction in violations after 
the severity and certainty of the penalties were increased. 12 In 
a recent research project, indexes of the certainty and severity 



The Rule of Law 7 

of punishment for homicide in the United States were calculated, 
and strong evidence was found to suggest that higher probabil- 
ities of certain apprehension and long imprisonment are asso- 
ciated with lower homicide rates. 13 Another study related cer- 
tainty and severity of punishment for crime to crime rates for 
the different states. A strong and consistent relationship was 
observed between greater certainty of punishment and lower of- 
fense rates in almost all cases (but no similar association for 
severity, except in the case of homicide), and the author con- 
cluded that "sociologists must take the idea of deterrence se- 
riously." 14 

Deterrence has generally been taken seriously by political sci- 
entists and lawyers. James Q. Wilson, for example, has recently 
noted that in our humanitarian concern for the rehabilitation 
function of our criminal justice system, we have instituted re- 
forms that may have reduced the system's deterrence of criminal 
behavior without offsetting gains in rehabilitation. 15 In testimony 
before the Violence Commission, James Vorenberg, the former 
Executive Director of the President's Commission on Law En- 
forcement and the Administration of Justice, stated: 

I do think we know, from the relatively few studies that 
have been made, that increasing the number of police does 
reduce crime without increasing the arrest rate . . . simply 
by serving as a deterrent. I think there are some other 
points in the [criminal justice] system where increased re- 
sources might have a deterrent effect . . . [such as] making 
the court system more efficient. . . , 16 

But if sociologists have frequently underestimated the utility 
of deterrence as a means of social control, lawyers and others 
have often overestimated it. And this brings us to a second major 
answer that must be given to the question of how legal institu- 
tions maintain social order. 

Public order in a free society does not and cannot rest solely 
on applications or threats of force by the authorities. It must 
also rest on the people's sense of the legitimacy of the rule-mak- 
ing institutions of the political and social order and of the rules 
these institutions make. Persons obey the rules of society when 
the groups with which they identify approve those who abide by 
the rules and disapprove those who violate them. Such expres- 
sions of approval and disapproval are forthcoming only if the 
group believes that the rule-making institutions are in fact en- 
titled to rule-that is, are "legitimate." 

The income tax laws, for example, make this point clear. In a 
way, these laws represent consensual taxation. True, some poten- 
tial violators are deterred by the strong probability of detection 
and punishment, but detection and punishment remain possible 



8 Report of the Task Force on Law and Law Enforcement 

only because the great majority voluntarily obey the law. Unless 
the great majority of citizens voluntarily maintained accurate 
records and filed accurate returns, the tax structure would col- 
lapse. No amount of investigation or force could insure the suc- 
cess of our tax laws as presently written. Regardless of the 
popular folklore, however, most Americans are apparently more 
honest in reporting their incomes voluntarily than the citizens of 
many other nations with far less violent crime than we have. 17 
They do so because they recognize, albeit grudgingly, the legit- 
imacy of the rule-making institution itself. But if this kind of 
episode occurs too frequently or persists for too long without 
change as in the case of prohibition or the decision to wage 
war in Vietnam the institution itself will soon begin to suffer 
a loss of legitimacy. 

This concept of acceptance of rules based upon legitimacy may 
be termed the "rule of law." The phrase is useful to describe the 
willingness of a people to accept and order their behavior ac- 
cording to the rules and procedures which are prescribed by 
political and social institutions such as legislatures and uni- 
versities and enforced, where necessary, either by those bodies 
or by other institutions such as governors, police, and courts. 
The "rule of law" expresses the idea that people recognize the 
legitimacy of the law as a means of ordering and controlling the 
behavior of all people in a society, the governors and the gov- 
erned, the rich and the poor, the contented and the discontented. 

THE RULE OF LAW IN AMERICA TODAY 

Abstractions like the "rule of law," or its popular accompani- 
ment "respect for law," though useful, also have a way of ob- 
scuring hard facts. We have already referred to the fact that 
law operates in part by force, and this is an aspect of social 
order that sometimes gets overlooked in discussions about the 
rule of law. We must also not let such phrases keep us from 
recognizing the increasingly radical nature of the legitimacy of 
American institutions. 

In our society, for well or for ill, legitimacy is becoming more 
and more fully equated with utility. 18 Despite the common man's 
reservoir of trust and deference toward his own elected govern- 
ment which has been a feature of our democracy, 19 there has al- 
ways been in our history a competing attitude now becoming 
stronger than ever before of insistence on results as a precon- 
c4 f ion to consent by the governed. This attitude has been power- 
fully reinforced by the philosophy and accomplishments of the 
modern welfare state, and has been further nurtured among the 
young by contemporary higher education's skeptical probings of 
political and governmental power. For many Americans there 



The Rule of Law 9 

is now no right to govern independent of what government does 
for their benefit or for the benefit of the groups in society with 
which they identify. In this view, institutions are accorded the 
right to make rules only to the extent that those rules clearly 
contribute in a positive way to the achievement of accepted goals. 

In this matter of the legitimacy of institutions, there is good 
reason to think that Americans may be too practical, too skep- 
tical, that we take at once too narrow and too demanding a view 
of the utility of our legislatures and universities, our President 
and our police. This is particularly true of young Americans, 
who often unrealistically demand that institutions achieve now 
(or at least before the term ends) full implementation of the 
society's professed values. If the institution fails to do what is 
right, quickly and honestly, its legitimacy is gone and action 
must be taken, almost regardless of what is reasonably possible 
for the institution to accomplish, and of what are the conse- 
quences of the action for the stability and welfare of the in- 
stitution. 

Some who are older or who have read more history are less 
demanding and more concerned to preserve even imperfect in- 
stitutions. Writing shortly after the Second World War, Christo- 
pher Dawson spoke for this point of view : 

[0] ur generation has been forced to realize how fragile and 
unsubstantial are the barriers that separate civilization from 
the forces of destruction. We have learnt that barbarism is 
not a picturesque myth or a half-forgotten memory of a 
long-passed stage of history, but an ugly underlying reality 
which may erupt with shattering force whenever the moral 
authority of civilization loses its control. 20 

For all its persuasiveness, however, this conservative point of 
view cannot be expected even to hold its own in America today. 
Increasingly, our institutions are handled with a profound im- 
patience over their shortcomings and, perhaps, an inadequate 
appreciation of their virtues. Change is valued over order, free- 
dom over control. Legitimacy, the entitlement to rule, has to be 
earned, almost daily, and earned in the face of ever-increasing 
standards of performance. 

The tone of today's and tomorrow's America is to be heard, not 
in the concern for social order as a value in iself , but in remarks 
of the kind recently made by the Mayor of New York City : 

If you wonder why so many students seem to take the 
radicals seriously, why they seem to listen to clearly unac- 
ceptable proposals and tactics, ask yourself what other source 
in the past has won for itself the confidence of young people. 

Is it the government, telling us that victory in Vietnam 



10 Report of the Task Force on Law and Law Enforcement 

was around the corner, or that we fight for a democratic ally 
that shuts down newspapers and jails the opposition? 

Is it the military, explaining at Ben Tre that "it became 
necessary to destroy the town in order to save it"? 

Is it the moralizer, warning of the illegality of marijuana 
smoking as he remembers fondly the good old days of illegal 
speakeasies and illegal bathtub gin? 

Is it the television commercial, promising an afternoon of 
erotic bliss in Eden if you only smoke a cigarette which is a 
known killer? 

Is it the university, which calls itself a special institution, 
divorced from worldly pursuits, while it engages in real 
estate speculation and helps plan and evaluate projects for 
the military in Vietnam? 

Where is the voice that in fact deserves the allegiance of 
concerned youth? The voice that can in fact draw lines to 
stop violent or disruptive protest and enforce those lines 
with the full support of these young men and women? 21 

Of course, the voice that draws the line between the acceptable 
and the unacceptable is nothing else but the law and this is the 
almost impossibly realistic notion of "law," that we as a nation 
bring to the challenges of an increasingly pluralistic, rapidly 
changing society. This is the "law" in the "rule of law" and the 
"respect for law" which we all devoutly wish to promote. 

From this understanding of the rule of law, two important and 
obvious lessons can be learned for the maintenance of social order 
in America. 

First, social order in American requires that our social and 
political institutions be able to regenerate themselves and respond 
more effectively to the discontents of the groups within our so- 
ciety who are currently pressing their claims upon the larger 
public. 

Second, social order in America requires a modern system of 
criminal justice which will effectively control increasing levels 
of deviant behavior in a manner consistent with our ideas of fair 
and humane treatment. 

The rest of this report is an examination of these two basic 
requirements. 



REFERENCES 

1. William H. McNeill, A World History (New York: Oxford University 
Press, 1967), at 11. 

2. Edward A. Hoebel, The Law of Primitive Man (Cambridge: Harvard 
Press, 1954), at 67-99. 

3. Bronislaw Malinowski, Crime and Custom in Savage Society (New 
York: Harcourt, Brace & Co., 1926), at 63-68. 



The Rule of Law 11 

4. Karl N. Llewellyn and Edward A. Hoebel, The Cheyenne Way (Nor- 
man: University of Oklahoma Press, 1941), at 12-13. 

5. Inger Hellstromm, "The Chinese Family in the Communist Revolution," 
6 Acta Sociologica 256-262 (1962). 

6. Christopher H. Dawson, Religion and the Rise of Western Culture 
(London: Sheed & Ward, 1950) ; Roscoe Pound, Social Control Through 
Law (Hamden, Conn.: Archon Books, 1968), at 18. 

7. Selznick, "Legal Institutions and Social Controls," 17 Van L. Rev. 79 
(1963). 

8. Hoebel, supra note 2, at 26. 

9. See references in Tittle, "Crime Rates and Legal Sanctions" to appear 
in Spring 1969 issue of Social Problems. 

10. Chambliss, "The Deterrent Influence of Punishment," 12 Crime & 
Delinquency 70 (1966). 

11. Tittle, supra note 9. 

12. Chambliss, supra note 10. 

13. Jack P. Gibbs, "Crime, Punishment and Deterrence," 48 Southwestern 
Social Science Quarterly 515 (1968). 

14. Tittle, supt-a note 9. 

15. James Q. Wilson, "Crime and Law Enforcement," in Agenda For the 
Nation, ed. by Kermit Gordon (Washington, D.C.: Brookings Institu- 
tion, 1968), at 184-85. 

16. Testimony of James Vorenberg before the National Commission on the 
Causes and Prevention of Violence, Sept. 25, 1968, tr. 452. 

17. E.g., Italy, France, Switzerland. New York Times, April 15, 1969, 
at 4. 

18. Testimony of James Q. Wilson before the National Commission on the 
Causes and Prevention of Violence, Sept. 18, 1969, tr. 185 et seq. 

19. Robert E. Lane, Political Ideology: Why the American Common Man 
Believes What He Docs (New York: The Free Press of Glencoe, 1962). 

20. Dawson, supra note 6, at 18. 

21. Address by John V. Lindsay before the Yale Law School Association in 
New Haven, Connecticut, April 26, 1969. 



CHAPTER 2 
DISOBEDIENCE TO LAW* 



Over the past two decades increasing numbers of people seem 
to have embraced the idea that active disobedience to valid law 
perhaps even violent disobedience is justified for the purpose 
of achieving a desirable political goal. This idea found wide- 
spread support in the South as the white majority in that region 
resisted enforcement of the constitutionally denned rights of 
Negroes, and some such notion was probably not far from the 
minds of the Alabama State Troopers when they attacked Dr. 
King's peaceful demonstration at Selma in 1965. No doubt it was 
also prominent in the thinking of the Chicago policemen who 
administered punishment to the demonstrators in Chicago during 
the Democratic Convention of 1968. 

The same idea that disobedience to law is justified in good 
cause which can be furthered in no other way is also widely 
held by many students, black citizens and other groups pressing 
for social change in America today. It is the illegal and some- 
times violent activities of these groups that have been most per- 
plexing and disturbing to the great majority of Americans. Their 
actions have prompted the most intense interest in the ancient 
philosophical question of man's duty of obedience to the state. 
Business lunches and suburban cocktail parties have come to 
sound like freshman seminars in philosophy, as an older genera- 
tion has argued back and forth over the rightness and the wrong- 
ness of "what the kids and the Negroes are doing." 

When deliberate, active disobedience to duly enacted, constitu- 
tionally valid law is widely engaged in as a political tactic, and 
when "civil disobedience" is a topic hotly debated on every side, 
it is impossible for a Task Force on Law and Law Enforcement 
to file a report that does not discuss this age-old subject, however 
briefly. 



* This chapter was prepared by the Directors of the Task Force, based 
in part on contributions by Francis A. Allen, Dean of the Law School, Uni- 
versity of Michigan, Charles Monson, Associate Academic Vice President, 
University of Utah, and Fugene V. Rostow, Professor of Law, Yale Univer- 
sity. 

13 



14 Report of the Task Force on Law and Law Enforcement 

THE AMERICAN IDEAL 

In a democratic society, dissent is the catalyst of progress. The 
ultimate viability of the system depends upon its ability to ac- 
commodate dissent ; to provide an orderly process by which dis- 
agreements can be adjudicated, wrongs righted, and the structure 
of the system modified in the face of changing conditions. No 
society meets all these needs perfectly. Moreover, political and 
social organizations are, by their nature, resistant to change. 
This is as it should be, because stability order is a funda- 
mental aim of social organization. Yet stability must not become 
atrophy, and the problem is to strike the proper balance between 
amenability to change and social stability. 

Every society represents a style of living. The style is repre- 
sented by the way in which people relate to the social structure, 
the way in which social decisions are made, the procedures which 
govern the ways people in the society relate to each other. In a 
democratic society such as ours, the governing ideals are govern- 
ment by the rule of law, equality before the law, and ultimate 
control of the law-making process by the people. We depend upon 
these principles both to accommodate and to limit change, and to 
insure the style of living we prefer. 

As Tocqueville observed, America is peculiarly a society of 
law. The law has played a greater part among us than is the case 
in any other social system in our restless and jealous insistence 
on the utmost range of freedom for the individual ; in our zeal to 
confine the authority of the state within constitutional dikes ; and 
in our use of law as a major instrument of social change. The 
practice of judicial review in the United States has had an extra- 
ordinary development, with no real parallels elsewhere. It has 
kept the law a powerful and persistent influence in every aspect 
of our public life. 

We believe with Jefferson that the just powers of government 
are derived and can only be derived from the consent of the 
governed. We are an independent, stiff-necked people, suspicious 
of power, and hardly docile before authority. We never hesitate 
to challenge the justness and the constitutional propriety of the 
powers our governments and other social institutions assert. In 
the robust and sinewy debates of our democracy, law is never 
taken for granted simply because it has been properly enacted. 

Our public life is organized under the explicit social compact 
of the Constitution, ratified directly by the people, not the States, 
and designed to be enforced by the Courts and by the political 
process as an instrument to establish and at the same time to 
limit the powers of government. As Justice Brandeis once ob- 
served, " [t] he doctrine of the separation of powers was adopted 
by the Convention of 1787, not to promote efficiency but to pre- 
clude the exercise of arbitrary power. The purpose was, not to 



uisobedience to Law 15 

avoid friction, but, by means of the inevitable friction incident 
to the distribution of the governmental powers among three de- 
partments, to save the people from autocracy. . . . And protection 
of the individual . . . from the arbitrary or capricious exercise of 
power . . . was believed to be an essential of free government." 

The social contract of our Constitution goes beyond the idea 
of the separation of powers, and of enforceable limits on the 
competence of government. The governments established by the 
national and state constitutions of the United States are not omni- 
potent. A basic feature of the Constitution, made explicit in the 
Ninth and Tenth Amendments, is that rights not delegated to 
governments are reserved to the people. The Amendments may 
not be directly enforceable in the Courts, but the idea they repre- 
sent animates many judicial decisions, and influences the course 
of legislation and other public action. 

In a multitude of ways, the Constitution assures the individual 
a wide zone of privacy and of freedom. It protects him when ac- 
cused of crime. It asserts his political rights his right to speak, 
to vote, and to assemble peaceably with his fellows to petition the 
Government for a redress of his grievances. Freedom of speech 
and of the press are guaranteed. Religious liberty is proclaimed, 
and an official establishment of religion proscribed. And the 
Constitution seeks assurance that society will remain open and 
diverse, hospitable to freedom, and organized around many cen- 
ters of power and influence, by making the rules of federalism 
and of liberty enforceable in the Courts. 

The unwritten constitution of our habits is dominated by the 
same concern for preserving individual freedom against en- 
croachment by the State or by social groups. The anti-trust laws ; 
the rights of labor; the growing modern use of state power to 
assure the equality of the Negro; the wide dispersal of power, 
authority, and opportunity in the hands of autonomous institu- 
tions of business, labor, and education all bespeak a characteris- 
tic insistence that our social arrangements protect liberty, and 
rest on the legitimacy of consent, either through the Constitution 
itself, made by the people, and capable of change only by their 
will, or through legislation and other established methods of 
social action. 

In broad outline, such is the pluralist social compact which 
has evolved out of our shared experience as a people. It has its 
roots in our history. And it grows and changes, in accordance 
with its own rules and aspirations, as every generation reassesses 
its meaning and its ideals. 

OUR CONTEMPORARY DISCONTENTS 

Today there are many who maintain that these ideals, and the 
institutions established to maintain them, no longer operate prop- 



16 Report of the Task Force on Law and Law Enforcement 

erly. In recent years, increasing numbers of Americans have 
taken to the streets to express their views on basic issues. Some 
come to exercise their right to dissent by parades and picketing. 
Some dramatize their causes by violating laws they feel to be 
wrong. Some use the issues being protested as drums to beat in 
a larger parade. For example, the Vietnam war has been used 
on one side as a dramatic moment in the ubiquitous, always evil 
Communist conspiracy ; on the other as an exemplar of the funda- 
mental diabolism of western capitalist nations. Some take to the 
streets in the belief that the public, if made aware of their griev- 
ances, will institute the necessary processes to correct them. 
Others come in anger ; not hopeful, but insistent ; serving notice, 
not seeking audience. Finally, there are even a few who take to 
the streets to tear at the fabric of society ; to confront, to commit 
acts of violence, to create conditions under which the present 
system can be swept away. 

Out of the widening protest, one disturbing theme has repeat- 
edly appeared. Increasingly those who protest speak of civil 
disobedience or even revolution as necessary instruments of ef- 
fecting needed social change, charging that the processes of law- 
ful change built into the system are inadequate to the task. 

The American response to this disobedience to law to events 
which are contrary to our fundamental beliefs about the mode 
of social and political change-has been ambivalent. The reason 
lies in the fact that the American people are going through a 
crisis of conscience. The issues in whose name violence has been 
committed have deeply disturbed and divided the American peo- 
ple. The tactics of the demonstrators have encountered angry 
opposition, but many Americans continue to sympathize with 
some or all of the goals sought by the demonstrators. After all, 
although one might argue that the Negro has advanced in the last 
ten years, few would maintain he has attained full first-class 
citizenship. And who would say the ghettos are not an agonizing 
disgrace? Similarly, Vietnam is hardly an open-and-shut case. 
The only point of view from which it is clearly praiseworthy is 
the self-interest of ourselves and our allies. The draft, another 
key issue, is at best a regrettable and clumsily administered sys- 
tem. Finally, when the young charge that our system-political 
and social is shot through with hypocrisy, only the most fanatic 
feels no twinge. 

We must, of course, realize that civil rights demonstrations 
arise from great suffering, disappointment and yearning. We 
must recognize the importance to the democratic process, and to 
the ultimate well-being of our nation, of young people combatting 
hypocrisy and indifference. But when these emotions become a 
basis for action and when that action creates social disorder, 
even the most sympathetic are forced to judge whether and to 



Disobedience to Law 17 

what extent the ends sought justify the means that are being 
used. 

The difficult problem in this endeavor is to maintain perspec- 
tive. The issues have reached a stage of polarization. Partisans 
on each side constantly escalate the rhetorical savagery of their 
positions, adding nothing but volume and abuse. There is a great 
temptation to take sides without thoughtful inquiry if for no 
other reason than because it is simpler. What are some of the 
considerations which should guide us in this inquiry? 

MORAL JUSTIFICATIONS FOR DISOBEDIENCE TO LAW: 
THE NEEDS OF THE INDIVIDUAL 

The idea that men have the right to violate the law under cer- 
tain circumstances is not new. The oldest justification for such 
action seems to have been through appeal to a higher "natural 
law" which is the only proper basis of human law. This theory, 
which dates at least as far back as Plato, and which is in our own 
Declaration of Independence, 1 has recently found expression in 
the thought of Martin Luther King : 

A just law is a man-made law of God. An unjust law is a 
code that is out of harmony with the moral law. To put it 
in the terms of Saint Thomas Acquinas, an unjust law is a 
human law that is not rooted in eternal and natural law. 2 

For St. Thomas political authority was derived from God and 
hence binding in conscience, but where authority was defective 
in title or exercise, there was no obligation of conscience. 3 Such 
a condition arose in the case of a ruler who had either usurped 
power or who, though legitimate, was abusing his authority by 
ruling unjustly. Indeed, when the ruler contravened the very 
purpose of his authority by ordering a sinful action, the subject 
was under an obligation not to obey. In the case of abuse of 
authority, St. Thomas apparently endorsed nothing more than 
passive resistance by the citizen; but where the ruler illegiti- 
mately possessed himself of power through violence, and there 
was no other recourse for the citizen, then St. Thomas allowed 
active resistance and even tyrannicide. 

Later Catholic thinkers, such as the Jesuit Francis Suarez 
denied the divine right of kings, holding that the ruler derives 
his authority immediately from the people and only ultimately 
from God. These doctrines led logically to the conclusion that 
in any circumstances in which a ruler turns into a tyrant, 
whether originally a legitimate ruler or not, he may be deposed 
by the people, by force if necessary. This conclusion became, of 
course, the generally accepted view in the secular world, with 
the theories of Locke and Jefferson and the American and French 



18 Report of the Task Force on Law and Law Enforcement 

Revolutions in the eighteenth century and the rise of liberal 
democracy in the nineteenth. 

The notion of a "social compact" was always closely bound up 
with the emerging ideas of popular sovereignty. 4 This theory, 
especially prominent in John Locke, expresses the view that gov- 
ernments evolve by the consent of the governed and that the con- 
stitution establishing a government is a contract or agreement 
which, once it is established, is binding upon all men, both those 
opposed to it and those who favor it. When government's laws 
are consistent with terms of the covenant, then the people must 
obey them. But the people "are absolved from obedience when 
illegal attempts are made upon their liberties or properties, and 
may oppose the unlawful violence of those who were their mag- 
istrates when they invade their properties contrary to the trust 
put in them. . . ." 5 

Most of the unlawful opposition today to the Vietnam war is 
justified on the ground that the war is itself immoral and "un- 
lawful" in various respects. Since it is immoral, the argument 
goes, there is no moral duty to obey those laws which are in the 
aid of the conduct of the war. Indeed, the argument continues, 
one's true moral duty is to resist the war and to take affirmative 
action to impede its prosecution. On theories of this kind, Amer- 
icans have refused to be drafted ; they have disrupted selective 
service facilities and destroyed selective service records; they 
have vilified the President, the Secretary of State and the Sec- 
retary of Defense and attempted to disrupt their public speeches ; 
they have attempted to bar companies and governmental agen- 
cies participating in the war effort from university campuses 
and to disrupt the universities that refused to accede to that 
demand. 

At the level of individual morality, the problem of disobedience 
to law is wholly intractable. One is tempted to suggest that even 
if the war is immoral, the general level of morality of the coun- 
try is not much improved by the conduct described above. More- 
over, if we allow individual conscience to guide obedience to the 
law, we must take all consciences. The law cannot distinguish 
between the consciences of saints and sinners. As Burke Mar- 
shall has said : 

If the decision to break the law really turned on individual 
conscience, it is hard to see in law how Dr. King is better off 
than Governor Ross Barnett of Mississippi, who also be- 
lieved deeply in his cause and was willing to go to jail. 6 

Where issues are framed in purely moral terms, they are 
usually incapable of resolution by substantially unanimous agree- 
ment. Moral decisions are reached by "individual prudential ap- 
plication of principle, with the principles so general as to be only 



Disobedience to Law 19 

of minimal assistance and with almost the whole field thus left 
to prudence/" 7 This fact is illustrated by the story of the ex- 
change that occurred between Emerson and Thoreau, the latter 
of whom had in 1845 personally seceded from the United States 
in protest against slavery. As part of his anti-slavery campaign, 
Thoreau was spending a night in jail. Emerson paid him a visit, 
greeting him by saying, "What are you doing in there, Henry?" 
Thoreau looked at him through the bars and replied, "What are 
you doing out there, Ralph?" 8 

But the issue raised by conscientious disobedience to law also 
has some more tractable social dimensions. What is the effect 
upon our society of this kind of conduct? For instance, how does 
it affect the people who engage in the disobedience? Does it have 
an effect upon other people? What does it do to our system of 
laws? 

THE PROBLEM OF CONTAGION : THE NEEDS OF SOCIETY 

Although there are some who argue that tolerating any form 
of law r violation serves as an encouragement of other forms of 
anti-social or criminal behavior by the violators, some research 
in this area suggests precisely the opposite. A series of studies 
of approximately 300 young black people who engaged in a 
series of acts of civil disobedience were undertaken in a western 
city. On the basis of their observations, the authors concluded: 
"[T]here have been virtually no manifestations of delinquency 
or anti-social behavior, no school drop-outs, and no known illegit- 
imate pregnancies. This is a remarkable record for any group 
of teen-age children of any color in any community in 1964." 9 

In any event the evidence is insufficient to demonstrate that 
acts of civil disobedience of the more limited kind inevitably lead 
to an increased disrespect for law or propensity toward crime. 
In fact, some experts have argued that engaging in disciplined 
civil disobedience allows people to channel resentment into con- 
structive paths, thereby reducing the propensity for engaging in 
antisocial behavior. 

But the fact that disobedience to law does not appear adversely 
to affect the attitudes of the people who engage in it is only one 
small part of the problem. For such conduct does have a serious 
adverse effect both upon other people in the society, and, most 
importantly of all, upon the system of laws upon which society 
must inevitably depend. 

The effect of civil disobedience upon others in the community 
is clear. Except in the case of those acts designed solely to appeal 
to the conscience of the community, the purpose of much con- 
temporary disobedience to law is to influence community action 
by harassing or intimidating the members of the community into 



20 Report of the Task Force on Law and Law Enforcement 

making concessions to a particular point of view. In the case 
of the opposition to the Vietnam war, for example, those engaged 
in acts of disobedience are largely bent upon making miserable 
the lives of public officials who support the war, upon bringing 
economic pressure to bear on commercial enterprises participat- 
ing in the war effort, and upon generally inconveniencing the 
public to dramatize a disaffection for war and convince others 
that the war is not worth the trouble it is causing. To the extent 
that these efforts succeed, others are obviously adversely af- 
fected* But the most serious effect of all is suggested in the 
following question : 

[W]hat lesson is being taught to the wider community by 
the precept and example of civil disobedience? Is it tutelage 
in nonviolence or in defiance of authority, in rational con- 
frontation of social ills or in undisciplined activism? 10 

There is every reason to believe that the lesson taught by much 
of the current disobedience to law is disastrous from the stand- 
point of the maintenance of a democratic society. 

The experience of India in this regard is instructive because 
that country has had such a long and widespread familiarity with 
the practice of civil disobedience: 

The fact is that the effect of protest behavior on the func- 
tioning of the political system has been palpable. We have 
already seen that Indians compel official attention and con- 
strain decision-making by deliberately engaging in activities 
that threaten public order. Violence or the threat of violence 
has become an important instrument in Indian politics. 
Public protests involving a threat to public order and non- 
violent civil disobedience have become habitual responses to 
alleged failures by government to do what a group of peo- 
ple want. While it is true that political accommodation is 
real in India, it is achieved at a higher level of political 
disorder than in any other of the world's democracies. 11 

The experience of India seems to indicate that civil disobed- 
ience has a strong tendency to become a pattern of conduct which 
soon replaces normal legal processes as the usual way in which 
society functions. Put in American terms, this would mean, 
once the pattern is established, that the accepted method of get- 
ting a new traffic light might be to disrupt traffic by blocking 
intersections, that complaints against businessmen might result 
in massive sit-ins, that improper garbage service might result 



*Even in the narrowly defined situation of acts designed solely to appeal 
to the conscience of the community, adverse effects frequently flow to 
others. Thus a refusal to accept induction into the armed services means 
that someone else must serve. 



Disobedience to Law 21 

in a campaign of simply dumping garbage into the street, 
and so on. Of course, these kinds of actions are not unknown in 
America today, but in India they have become a necessary part 
of the political system. Without a massive demonstration to 
support it, a grievance simply is not taken seriously because 
everyone knows that if the grievance were serious, there would 
be a demonstration to support it. 

The adverse effect upon normal democratic processes is ob- 
vious. Though not intended to destroy democratic processes, civil 
disobedience tends plainly to impair their operation. This is a 
fact to which those who engage in civil disobedience should give 
consideration lest, in seeking to improve society, they may well 
seriously injure it. 

This observation, however, will not answer the arguments of 
those w r ho believe that the urgency of their message is so strong 
that illegal tactics are weapons that must be used whatever the 
risks that such use may entail. But even urgent messages too 
frequently repeated lose their appeal. Where once people at least 
listened patiently, now only deaf ears are turned. Moreover, as 
Martin Luther King recognized, violence against an oppressor 
only tends in the long run to justify the oppression. Repeatedly 
putting one's body "on the line" does not enhance, but diminishes, 
the worth of that body to the dominant society. Those militants 
who now advocate revolution as the only alternative have recog- 
nized this truth. 

The belief that a violent revolution is necessary to achieve 
social justice depends on the assumption that certain injustices 
are intrinsic to our system and therefore not amenable to change 
within the system. For revolution is justified only as a last re- 
sort, when justice is achievable by no other means. 

We agree with the overwhelming majority of the people in 
this country that our problems, serious as they are, are not of the 
kind that make revolution even thinkable, let alone justifiable. 
We believe that /political and social mechanisms do exist and have 
produced significant change in recent years. The remedy for the 
discontented, we believe, is to seek change through lawful me- 
chanisms, changes of the kind that other chapters of this report 
suggest. 

But our beliefs and our words are really beside the point. What 
is important is rather the beliefs of those diverse, alienated 
groups in our society for whom the political and social mechan- 
isms do not seem to work. We can only hope that the majority 
will respond convincingly to the needs of the discontented, and 
that the discontented will remain open to the possibility of achiev- 
ing this response through peaceful means. 



22 Report of the Task Force on Law and Law Enforcement 

CONCLUSION 

Official lawlessness by some southern governors, by some 
policemen, by corrupt individuals in positions of public trust 
is widely recognized as intolerable in a society of law, even if this 
recognition is too infrequently translated into effective action 
to do something about the problem. We believe that the time has 
also come for those participating today in the various protest 
movements, on and off the college campuses, to subject their dis- 
obedience to law to realistic appraisal. The question that needs 
to be put to young people of generous impulses all over the coun- 
try is whether tactics relying on deliberate, symbolic, and some- 
times violent lawbreaking are in fact contributing to the emer- 
gence of a society that will show enhanced regard for human 
values for equality, decency, and individual volition. 

For some in the protest movement, this is not a relevant in- 
quiry : their motivations are essentially illiberal and destructive. 
But this is not descriptive of most of those engaged today in 
social protest, including most who have violated the law in the 
course of their protest : their intention is to recall America to 
the ideals upon which she is founded. 

We believe, however, that candid examination of what is oc- 
curring in the United States today will lead to the conclusion 
that disobedience to valid law as a tactic of protest by discon- 
tented groups is not contributing to the emergence of a more 
liberal and humane society, but is, on the contrary, producing 
an opposite tendency. The fears and resentments created by sym- 
bolic law violation have strengthened the political power of some 
of the most destructive elements in American society. Only naive 
and willful blindness can obscure the strength of these dark 
forces, which, but for the loosening of the bonds of law, might 
otherwise lie quiescent beneath the surface of our national life. 
An almost Newtonian process of action and reaction is at work, 
and fanaticism even for laudable goals breeds fanaticism in 
opposition. Just as "extremism in defense of liberty" does not 
promote liberty, so extremism in the cause of justice will extin- 
guish hopes for a just society. 



REFERENCES 

1. "We hold these truths to be self-evident, that all men are created equal, 
that they are endowed by their Creator with certain unalienable Rights, 
that among these are Life, Liberty and the pursuit of Happiness." 

2. King, "Letter from the Birmingham Jail" (1963). 

3. See generally the illuminating article by MacGuigan, "Civil Disobedi- 
ence and Natural Law," 11 Catholic Lawyer 118 (1965). 



Disobedience to Law 23 

4. See Copleston, History of Philosophy, vol. 3 (Westminster, Md., 1953), 
at 348-49. 

5. Locke, Second Treatise on Civil Government, ch. 19, "Of the Dissolu- 
tion of Government," sec. 228. 

6. Marshall, "The Protest Movement and the Law," 51 U. Va. L. Rev. 
785,800 (1965). 

7. MacGuigan, supra note 3, at 125. 

8. Id. 

9. Pierce and West, "Six Years of Sit-ins: Psychodynamics, Causes and 
Effects," 12 Inn J. of Social Psychiatry 30 (Winter 1966). 

10. Allen, "Civil Disobedience and the Legal Order," Part 1, 36 U. Cinn. L. 
Rev. 1, 30 (1967). 

11. Bayley, Non-violent Civil Disobedience and the Police: Lesson to be 
Learned from India, at 15. 



PART TWO 

INSTITUTIONS OF THE POLITICAL 
AND SOCIAL ORDER 



25 



CHAPTER 3 

LAW AND THE GRIEVANCES OF 
THE POOR* 



... to the poor man, 'legal' has become a synonym for 
technicalities and obstruction, not for that which is to 
be respected. The poor man looks upon the law as an 
enemy, not as a friend. For him the law is always taking 
something away. Robert F. Kennedy 

If it is true that the poor are especially prone to violence, it is 
true in part because violence is a response to frustration frustra- 
tion from never being listened to, from always being bypassed, 
from continually being told to "come back later," and from having 
a series of petty officials talk down to them. 1 The poor get into 
legal trouble easier than anybody else. They seem to court ex- 
ploitation. They seldom read the small print, and because they are 
poor, they want things more. 

W. T. Grant Co., a department store chain, conducts a campaign 
to sell coupon books worth $200 in merchandise, payable in $10 
monthly installments for 2 years ($240). The customer thus pays 
20 percent interest on the money, regardless of when he uses the 
coupons or whether or not he ever uses them. The customer bears 
the risk of theft, loss, or nonuse of the coupons. Any default on a 
monthly payment allows the retailer to get a judgment for the 
whole $240 plus a $10 penalty. 2 The poor and the unsophisticated 
will accept the offer to "buy now and pay later." 

In 1957, Walker-Thomas, an appliance store in Washington, 
B.C., sold a relief mother of seven $1,800 worth of merchandise 
on installment contracts. In 1962 when she was within $170 of 
final payment, she was solicited to buy a $515 stereo set. Sub- 
sequent failure to make her payments on the new purchase re- 
sulted in an action to repossess not only the stereo but all the other 



* This chapter was prepared by Patricia M. Wald and Robert L. Wald of 
the District of Columbia Bar, in substantial part on the basis of research 
contributions by Jerome Carlin, Director, Neighborhood Legal Assistance 
Foundation, San Francisco, Calif.; Linda R. Singer, Associate, Kurzman 
and Goldfarb, Washington, D.C.; and Barbara Curran of the American Bar 
Foundation, Chicago, 111. 

27 



28 Report of the Task Force on Law and Law Enforcement 

items dating back to 1957. In obscure fine print the contracts had 
said that an unpaid balance on any one item would be distributed 
among all prior purchases. That meant everything could be taken 
back. 3 As an added flourish to this kind of exploitation, holders-in- 
due-course of such contracts purchased from the original seller 
take the contracts free from any responsibility for fraudulent 
inducement, mistake, unconscionability, or other legal doctrines 
that inhibit exploitation of the unwary. 4 

In 1966, eleven ghetto retailers in Washington, B.C., secured 
2,690 repossession judgments, one for every $2,200 of their total 
sales. The judgments against such buyers are generally by de- 
fault. 5 The Federal Trade Commission found in the same city that 
ghetto furniture and appliance merchants charged over 60% 
more for their goods than those who sold to the general public. 6 
They used installment contracts three times as often. 

Collection practices against poor debtors are often unscrupu- 
lous. Customers sign a "confession of judgment" along with the 
sales contract; 7 as soon as they miss a payment, the seller can sue 
for the total unpaid balance without notice. He can obtain a lien 
on the debtor's property for that judgment. He can garnishee his 
wages. Collection agencies specialize in in terror em techniques 
against the nonpaying debtor by threatening phone calls, harass- 
ment of employers, and verbal abuse. 8 Employers frequently 
prefer to fire a casual employee rather than submit themselves to 
such tactics or undergo the administrative inconvenience of wage- 
withholding. 9 

The poor tenant fares no better with his landlord than with his 
creditors. His options are limited to a few square miles of slums 
in the inner city. He pays suburban prices for peeling plaster, 
unlighted hallways, defective furnaces, rubbish, and rats. Usually, 
he signs a 30-day lease, terminable without cause by the landlord 
and without notice for any rent default. He disclaims any war- 
ranty of habitability ; and he agrees to make all repairs and to 
accept the premises "as is," even to waive any damages for the 
landlord's negligence. If he tries complaining to the authorities 
about housing code violations, he may be evicted in retaliation. 10 
Half the time he is in violation himself for overcrowding. 11 

When the inevitable eviction notice comes if indeed it does 
not go by default through "sewer service" the tenant has few 
defenses. 12 Most courts do not see any relationship between the 
tenant's duty to pay rent and the landlord's duty to keep the 
premises in minimally decent condition. They are "independent 
covenants." Stays of eviction are not normally granted for the 
ordinary hardship of being thrown out on the streets. 13 

Within the confines of their peeling walls, the poor reap the 
whirlwind of poverty in their personal lives. A woman deserted 
by her jobless husband cannot afford a divorce. She drifts into 



Law and the Grievances of the Poor 29 

casual relationships; both parties know there is no future mar- 
riage in the cards. The children born of such transient unions bear 
the stigma of illegitimacy. If the mother is on relief, the state may 
step in and try to take the children away under a "presumption 
of neglect" stemming from their illegitimacy. The couples who 
do stick it out suffer the corrosive effects on their life and love of 
ill health, ill housing, and hunger. There are seldom any marriage 
counsellors for the poor. As a condition of welfare, wives must 
sue the father for support of any children whether or not there 
was ever a marriage. Old people must clutch at any available 
relative for support, pulling their young down with them. Dignity 
is not for the poor. 14 Too often the poor make each other the 
whipping boys of their barren and desperate lives. 

From birth to death the curse of poverty follows a man or 
woman and the law gives little succor. Its trappings are of an 
infinite variety. In one week the following situations found their 
way into a single poverty law office in one city : 

A child presumed legitimate because "born in wedlock" 
must officially be pronounced illegitimate so that the mother 
can bring a paternity suit to reimburse the welfare depart- 
ment. 

An abandoned mother with 7 children, three of whom have 
chronic bronchitis, is evicted by the U.S. Marshal. The land- 
lord calls the police to take the children away to the local 
orphanage, but the mother threatens him with a kitchen 
knife. She is taken away for mental observation. Her children 
join 600 homeless offspring of the poor, hidden conveniently 
"across the river" in the local orphanage. (The marshals will 
not evict if there is 40% chance of rain. The poor pray for 
rain.) 

A 10-year old girl is slapped across the face by a teacher 
for getting out of line waiting for cafeteria. When her mother 
goes to the principal to complain, there are two policemen 
waiting to tell her she has no case. 

A 12-year old boy arrested for petty larceny is put into the 
detention home because he has no 'suitable home' in which to 
await trial. There he is homosexually attacked by gangs of 
older boys, to the point where he must ask for guards to go 
to the bathroom. 

A tenant sued for eviction for nonpayment of rent in a 
tenement where he has had no heat all winter is told in court 
it is "irrelevant" that the landloard had 1200 Housing Code 
violations outstanding on the property. Across the street in 
the U.S. District Court the landloard is suing in "equity" to 
recover the rent money the tenant's council has deposited in 
escrow to pay for repairs. The landlord wants it with no 
strings attached to use to pay off the mortgage. He is plan- 



30 Report of the Task Force on Law and Law Enforcement 

ning to sell to a new owner against whom the old violations 
must be prosecuted anew. 

The domestic relations court denies the petition to proceed 
as a pauper in a divorce action of a welfare mother with 
7 children, deserted 8 years ago. The judge says she can 
"budget" her money to afford the filing fee, and her poverty 
lawyer is "stirring up" litigation by representing her free. 

The public housing authority denies space to a couple with 
eight children living in desperate misery in two rooms. The 
children are all theirs ; they have lived together for 10 years ; 
he has supported the mother and children as best he could 
all that time. They have never married because she cannot 
afford a divorce from her first husband. The manager of the 
project says they would be an affront to the morals of the 
project; they are "living in sin." 

A woman complains that she and her children are starving 
but they can afford food stamps "only in summer." There is 
a minimum purchase amount and in winter her utility bills 
cost so much she can't save up the minimum. 

An old grandmother would like to adopt her daughter's 
abandoned epileptic son to prevent his being "put away," but 
she hasn't the fee for the adoption papers and the Welfare 
Department doesn't think she is a proper custodian. 

The Welfare Department tells a grieving mother whose 
8-year old son has been run over by a truck while playing in 
the street that she must bury him in a strange funeral parlor 
across town because that is the only firm the Department has 
a burial contract with. The only coffin she can have is one 
made out of cardboard. 

THE POOR AND THE BUREAUCRACY 

There are special agencies to help the poor. Too often, how- 
ever, they create a new set of legal problems and spawn new 
sources of frustration for the poor. The welfare system is the 
foremost example. Its most basic purpose is to provide the 
necessities of food, shelter, and clothing for the poor. Nearly 
one out of every 25 people in the United States is on welfare. 

As it now exists, welfare intrudes into every aspect of the 
recipients' lives ; it determines where they live ; with whom they 
live; whether children get new clothes for school; what kind 
of food they buy and where ; where they go when they get sick. 
It is like life-long probation. 15 

For every person admitted to the welfare ranks, one or more 
is denied. 16 

An applicant becomes eligible for assistance when he ex- 
hausts his money, gives a lien on his property to the Welfare 



Law and the Grievances of the Poor 31 

Department, turns in the license plates of his car and takes 
legal action against his legally responsible relatives. When 
he is stripped of all material resources, when he "proves"' 
his dependency, then and only then is he eligible. 17 

Denial is usually based on length of residence, existence of a 
"responsible relative" (regardless of how he feels about you) ; 
the age of your children, whether you are "employable" (whether 
or not you actually have a job) ; and, until recently, whether you 
had a boyfriend (regardless of whether he helped with money). 
Need alone is never enough. 

Once on welfare, continuation is precarious. Regulations 
guide your every waking moment. In Los Angeles, the welfare 
regulations weigh 115 pounds. 18 Since recent legislation, 19 there 
must be a fair hearing on request before final withdrawal of 
federally financed welfare programs. The hearing need not, how- 
ever, come before the benefits are actually withdrawn. The 
withdrawal can be based on information the recipient never 
confronts, or obtained in violation of her rights to privacy and 
to freedom from unreasonable search and seizure. 20 Welfare 
recipients have been prey to the inspector's knock on the door 
any time of day or night. 21 Overpayments, even when the agency 
is at fault, can be collected at any future date from the recipient. 
The Welfare Department has a lien on whatever meager re- 
sources the recipient may pass on to heirs. 

And there are always the fluctuations of legislative mood 
and public feeling to contend with, over and beyond agency 
administration. "Welfare cuts," "crackdowns," new and more 
restrictive conditions come with political change. The "right" 
to any kind of welfare grant on any condition is always tied 
to the basic appropriation of money about which there is never 
any certainty for the poor. Consider the ramifications of a recent 
New York 5 to 8 percent across-the-board budget cut in welfare 
allowances to one family. 22 

"My children will probably have to starve," said Mrs. 
Escobar, "because right now, I can't get along on what 
we're getting." 

Mrs. Escobar and her three children, ages 4-8, (an 
average welfare family) are presently living on $2536 a 
year in relief payments. That includes $100 every three 
months in a flat grant to pay for essentials not included 
in the $2,136 basic grant. 

However, because of the Legislature's welfare cut in the 
budget, $40 of the basic grant will go. And because of a 
new welfare assistance bill, all of the flat grant will go. 

"It is not enough. The food we've been having is not 
enough. I would like my children to eat. I would like them 



32 Report of the Task Force on Law and Law Enforcement 

to have meat every day." Mrs. Escobar said she only eats 
meat "once in a while. Now I won't eat any." 

Their troubles are many: she has asthma and stomach 
trouble. She will undergo surgery Monday to remove a 
tumor from her left side. She was deserted by her husband 
four years ago in Puerto Rico. Her oldest son, Raphael 
Zapata, has asthma. The flat grant elimination, which in- 
cludes clothing, troubles her the most. 

"My oldest son must have warm clothing in the winter," 
she said. "I just don't know what to do. I just won't be 
able to send him to school. As it is now I can't dress any 
of the children right." 



And now what can Mrs. Escobar do? She doesn't know 
who her Assemblyman is. She doesn't even really know 
where Albany is. So she just shrugs and says: "I'll try." 

Public housing is society's good will gesture toward the low 
income renter who cannot afford decent private quarters at 
today's market rates. There is, however, never enough public 
housing for all those who need it. Waiting lists are 3 and 4 years 
long. As a result, public housing administrators are driven to 
scrupulous scrutinization of applicants to eliminate all but the 
most worthy. 23 Unwed mothers, if not disqualified altogether, 
may be limited to one illegitimate child ; couples must be married 
no matter what the circumstances. Thirty day leases, terminable 
at the landlord's will, were until recently the standard for public 
housing as well as private slumlords. 24 Ironically, public housing 
projects often hold themselves out as exempt from the municipal 
Codes governing private landlords. 25 Although rent-controlled, 
public housing in most cities elevates its poor tenants very little 
above the slums from which it rescued them. 

Education is the latchkey out of the prison house of poverty, 
the means by which the second generation of immigrants can 
traditionally step up the economic and social ladder to middle 
class respectability. In actuality, the slum child today faces not 
only dilapidated buildings, outmoded equipment, inferior or 
undertrained teachers, but also an administrative bureaucracy 
determined to push out all nonconformists and troublemakers. 
An overwhelmed public school system has only time to teach those 
who learn easily. The slow learner, the emotionally mixed-up 
and acting-out adolescent is suspended and expelled when he 
proves "disruptive." Such suspensions are often accomplished 
with no prior notice to the parents ; the child gets no hearing 
or opportunity to confront his accusers on questions of fact; 
there is no right to have counsel present to speak for the child. 
Yet the consequences to his future in an age of mass special- 



Law and the Grievances of the Poor 33 

ization are unthinkable. Most big city school systems have "spe- 
cial adjustment classes," "twilight schools" for some of the edu- 
cationally or socially intolerable, but by every evaluation they 
are holding actions up to the dropout age. They label and isolate, 
and so destroy the urge to learn. In every city, hundreds or thou- 
sands of school-age children wander the streets, courting trouble 
with the law, because they have no legally enforceable right 
to stay in school. 

Besides the agencies that offer direct help to the poor, there 
are those that are supposed to protect the poor from their poten- 
tial exploiters : consumer fraud bureaus, human relations and 
antidiscrimination commissions, housing code authorities. Yet 
their record of achievement in championing the poor is gen- 
erally an unprepossessing one, for several reasons. 

These agencies have adopted too passive a stance; they tend 
to wait for complaints to come to them. The poor are traditionally 
apathetic, and their articulation before grievance bureaus is not 
formidable. Either they don't know the agency exists or where 
it is located, or they don't want to waste a day's pay going 
downtown. Or, more basically, they don't expect it will do much 
good. 26 

Housing code authorities are typical. If they rely on com- 
plaints by tenants, enforcement can only be sporadic, piecemeal, 
and even unfair. 27 Yet their resources are seldom adequate to 
allow systematic and periodic general inspection. When they do 
locate violators, they generally "negotiate" for compliance within 
a "reasonable time." Periods of grace and extension are liberally 
allowed; a tenant can live without heat or under a leaky roof 
18 months before the landlord finally must comply. Even then, 
most housing codes carry only criminal penalties which judges 
are reluctant to impose. Landlords are rarely sent to jail; the 
fines are miniscule. 

Insufficient manpower, low salaries, high turnover characterize 
these "protector agencies" of the poor. They are the first to be 
cut from the budget and the last to be reinfused. Those that 
occasionally try "aggressive action" on the part of their cli- 
entele bring down the wrath of "harassed" merchants, "strug- 
gling" landlords, "red-taped" employers. As a result, they would 
rather "advise," "recommend," "mediate," and "refer." Few 
have real teeth to order businesses to cease and desist, to impose 
substantial and cumulative civil penalties, to initiate injunctive 
court proceedings. 

The administrative process has proved of little help to the 
poor. Agencies like Welfare, designed solely for their benefit, 
acquire an antiwelfare bias: they become instead guardians 
of the public purse. 28 The administrators must to survive be- 
come highly sensitized to community and legislative attitudes 



34 Report of the Task Force on Law and Law Enforcement 

about "chiseling." Caseworkers in turn are victims of a "paper- 
work explosion" to insure that no recipient gets an unauthorized 
nickel. 29 They have too little time left to help. 30 The bigger the 
bureaucracy, the less human the response. Responsibility for 
putting a poor person on or taking him off of welfare becomes 
fragmented ; he never knows whom to blame, the caseworker, 
her supervisor, the hearing officer, the head of the agency, the 
legislature who fails to vote the funds. 31 In such a Kafka-like 
regime, he is denied even the luxury of hate. 

As for the "do-gooder" agencies that claim to protect him from 
commercial exploitation and racial discrimination, he remains 
skeptical. Their strength and numbers do not vary with his 
need, but with the general good will and legislative largesse. 
Housing code inspectors rarely can compete with welfare inspec- 
tors in the blood bath of budget making. 

THE COURTS AND THE POOR 

The last resort of the poor as well as the rich is in the courts. 
They are there to do justice, whatever the cost. They must 
stand between the individual citizen and the carnivorous mer- 
chant, the profiteering landlord, the arbitrary administrator. If 
he cannot find justice there, the poor man is lost. 32 

The courts of the poor are the courts of "inferior" jurisdic- 
tion, the "people's courts." The judges in these lower courts tend 
to be younger, less experienced, from less prestigious law 
schools. 33 The caseloads of these courts tend to be the greatest. 34 
The deliberate pace of the superior courts is not for the poor; 
their tribunals more nearly resemble the racetrack on opening 
day. 35 Cases of enormous importance to the participants are 
handled in an assembly-line fashion, with less than five minutes 
to a case. 36 

Specialized "social" courts family courts, drunk courts, 
juvenile courts or specialized "legal" courts landlord-tenant 
courts, small claims courts handle the bulk of cases involving 
the urban poor. In the "social courts" the judges rely, too heavily 
if at all, on reports of probation officers, intake officers, social 
workers, and referees to dispose of the parties' complaints. The 
reports are often not available to the parties, they contain 
inadmissible and hearsay evidence, and their drafters cannot 
be cross-examined. In the "legal courts," no account at all is 
taken of the equities: the tenant owes rent, the debtor owes 
money; that is that. 

In these courts, parties are most often not represented by 
counsel; the proceedings are not recorded; appeals are infre- 
quent. 37 Dispositions are commonly arrived at in such courts 
without a full adversary hearing. In the Municipal Court of 



Law and the Grievances of the Poor 35 

California, only 5 percent of all dispositions were after trial, 
compared to 10 percent in the Superior Courts. 38 Without 
a formal challenge to the other party's facts in open court, the 
poor person is usually at a disadvantage. 

The small claims court stands as a prime example. Created to 
help the poor creditor collect his claims without fuss or fanfare, 
it has been perverted into a mass collection agency for stores 
and businesses against the poor. A study of the Oakland-Pied- 
mont Small Claims Court showed that two out of every three 
users were either business firms (jewelry and department stores, 
mail order houses, finance companies) or local government agen- 
cies (principally the County of Alameda with claims for hos- 
pital services rendered and for unpaid taxes). Most (85 percent) 
of these organization plaintiffs filed several claims at a time, 
and were regular users of the court. 39 By dispensing with "legal 
technicalities" and emphasizing "settlement," small claims courts 
pit unskilled and inexperienced debtors against the paid agents 
of companies who handle such claims by the thousands. 

The poor do not collect in small claims courts; they are only 
collected from. In Philadelphia, the dockets of the Magistrates 
Court do not even have a form in which to record a judgment for 
the defendant; court clerks there cannot recall such a happen- 
ing in 20 years. 40 In Washington, defendants most often agree 
to a "settlement" with the collection agency attorney out of the 
judge's hearing, involving only a token reduction. When counsel 
on both sides are present, however, the claim is more likely to be 
reduced by 50 percent or dismissed altogether. The collection 
lawyer will frequently postpone the case if he suspects an 
unfriendly judge, and then will charge the costs to the debtor. 

A judge in the Washington, B.C. Small Claims Court re- 
marked about the predominantly Negro poor who are its de- 
fendants : "It's a miracle they don't burn down the courthouse. 
All they see is white people enforcing white laws designed to 
do them in." 41 

Another obstacle to justice for the poor in our courts is the 
high cost of litigation. 42 There are filing fees to initiate suit 
($10 in the District Court in Washington, B.C.; $32 in the 
Superior Court in California) ; process serving fees ($3 in 
B.C.) ; jury fees of $8; witness fees of $20 a day in B.C. In 
some proceedings, special costs add up : $100 for appointed 
counsel for the defendant in an uncontested divorce case, $50 
for a blood test in a paternity case. Security bonds are often 
required: in replevin, 10 percent of twice the value of the goods; 
in rent actions, twice the amount owed. Surety bonds cost the 
poor more because they are poorer risks. Then for pretrial 
preparation there may be interrogatories, subpoenas duces tecum, 
depositions, and discovery. Poor persons or their lawyers can 



36 Report of the Task Force on Law and Law Enforcement 

seldom afford any of these. The transcript itself goes for about 
$1.00 a page. Investigators cost $10 an hour plus a retainer. 
Expert witnesses to testify on quality of products in con- 
sumer cases and property evaluation in landlord tenant cases- 
can cost up to $300 an appearance. Publication costs in non- 
resident actions may accumulate to $100 or more. 

Many states have forma pauperis laws which will exempt 
some of these fees for poor persons. But typically the exemp- 
tions are limited to the fees of court officials, filing and clerk 
fees. They do not cover the area of charges to independent 
entrepreneurs who carry on their businesses in the courthouse 
corridors and courtrooms, and without whose cooperation liti- 
gants may not proceed. Thus forma pauperis laws will not usually 
cover the court reporters, medical or other experts, or surety 
companies. Moreover, the laws are permissive; it is up to the 
judge's discretion to decide who deserves this privilege. Often 
judges will decide that the poor do not need certain kinds of 
legal relief allowed others, such as divorce or personal injury 
claims. The forma pauperis laws thus become a screening device 
for judges to prejudge who can enter the arena of justice. They 
also allow a measure of control over the legal traffic of the 
poor not obtainable over paying litigants. 

There is no question that the costs of justice impede the ef- 
forts of counsel for the poor. OEO legal service programs have 
small litigation funds which can be exhausted by one or two 
major test cases. They must often tell the clients they cannot go 
to court unless they can raise the fees. 

It is time for our courts to do away with this vestige of justice 
bought and sold in the courthouse. 

[W]hy have we put the administration of justice by one 
of the three great coordinate branches of Government on a 
basis of pay-as-you-go? No one would ask the Executive 
Branch, or the Legislative Branch to justify itself as a self- 
liquidating institution. The people are perfectly content 
to pay for those services by way of taxes. Why should not 
the people be equally entitled to the service of the Judicial 
Branch of Government without being required to pay fees 
every time they turn around, or to take a pauper's oath 
in order to get into the courthouse. . . , 43 

Officials now occupying a quasi-official function like court re- 
porters or process servers should be brought under the court 
umbrella and paid salaries so that their essential services need 
not be bought. A court-controlled bonding agency has been 
suggested to adjust security to need and means. A revolving 
fund for the necessary costs to outsiders like expert witnesses 
and investigators would aid the poor on the "extras." There 



Law and the Grievances of the Poor 37 

should also be some mechanism similar to the Criminal Justice 
Act provision to allow litigants to pay what they can afford 
in such cases and be exempted from the rest. 

THE RIGHT TO COUNSEL 

Our system of justice is an adversary one. To make it work, 
there must be lawyers on both sides. The poor traditionally have 
the least access to private lawyers. 44 Those they have used have 
generally been the least competent and responsible. They lack 
the money to pay the lawyer and, sometimes, to sit out the course 
of extended litigation. 45 They don't know many lawyers. 46 A 
California survey found only 30% of the poor persons inter- 
viewed had any contact with lawyers; only 8% of persons with 
commercial grievances knew enough to seek legal help. 47 When 
a poor person does go to a lawyer, it is usually too late ; his goods 
have been repossessed, the eviction notice served. Preventive 
legal services are an unknown commodity. 

Legal Aid Societies have been in existence since the turn of 
the century. 48 But despite dedication, they could not make a dent 
in the needs of the poor. In 1949 there were 37 legal aid offices 
and 20 Bar Association offices in America where civil indigents 
could go for help. Less than 4 million dollars a year was ex- 
pended in civil legal aid. They tended to shy away from causes 
than would engage them in controversy or antagonize private 
contributors. 49 

Not until the 1960's did more aggressive efforts for the poor 
emerge. Gideon v. Wainwright (392 U.S. 335) mandated counsel 
for serious criminal offenses; In re Gault (387 U.S. 1) did the 
same for juvenile offender; the Legal Services Program became 
an intrinsic part of the war against poverty. 50 

The OEO program focused on accessible neighborhood law of- 
fices, participation of the poor themselves in the governing bodies 
of the program, aggressive action on behalf of the poor in trying 
to reform the substantive law and the institutions which affect 
their lives. By 1968, 250 such programs existed, handling almost 
800,000 cases a year, and winning 70% of their court trials (40,- 
000) and 60 c /c of their appellate cases (400) ; and 1,800 staff 
lawyers labored for the poor in 85 neighborhood offices in 46 
jurisdictions. One bar association president said: 51 

The one institution with power to raise [the poor person's] 
sights beyond the invisible wall and the invincible system is 
the all too new Legal Services field office. For the very first 
time, he has at his disposal the one tool that he could never 
afford a well trained professional whose sole and only in- 
terest is to assist him in his sorry plight. More important 



38 Report of the Task Force on Law and Law Enforcement 

than the [legal] assistance he is receiving is the fact that 
this is his. This in itself gives him a new status and, even 
more, it gives him hope. 

They have begun the long range task of changing the law of 
the poor. Through their efforts, in at least some jurisdictions, 
not only must there now be hearings prior to welfare cutoffs, 52 
but welfare departments cannot set flat ceiling rates on payments 
to large families. Inspectors cannot invade recipients' privacy 
at any hour ; grants cannot be cut off merely because the mother 
is living with or seeing another man. Children cannot be taken 
away solely because they are illegitimate and their mother is on 
welfare. Tenants cannot be evicted because they report code 
violations ; public housing residents must have some kind of hear- 
ing before eviction. Leases executed when code violations exist 
may be declared illegal and unenforceable against the tenant. 
Grossly exorbitant interest charges and repossession rights may 
make a contract "unconscionable." Suits have been brought to 
declare housing authorities' location of projects in de facto segre- 
gated areas unlawful; to require counties to take advantage of 
food stamp programs and to administer them in a way that will 
benefit the very poor; to insist on apportionment of education 
funds so that disadvantaged children will get as much or more 
than the children in advantaged areas; to enjoin urban renewal 
projects where adequate provision is not made for relocating 
present area residents; to outlaw garnishment of poor debtors' 
wages ; to require credit companies to keep accurate records and 
open their files to complaining victims ; 53 to compel federal gov- 
ernment agencies to insure adequate low income housing for 
employees before they move to the suburbs. 

But the OEO lawyers are the first to admit they are just 
scratching the surface. Most of them are swamped in volume, 
constantly torn between the demand for individual service and 
the need for concentration on basic law reforms. They are mostly 
young ; after a few years and because of economic demands, they 
move out into more lucrative private practice or government 
service. 

In this program you get used to having everyone mad at 
you. You seldom get to help your client in any basic way 
out of the interminable mess he lives in. You stay the evic- 
tion for one more week ; get him a few more dollars on wel- 
fare; maybe keep the disturbed kid in his home a few 
months longer on probation before he gets in real trouble 
and is put away in training school. But so what, big deal. 
We don't get jobs for people; or build them houses; or give 
them real hope. We just take the edge off of the "big lie." 
Like demarol while your leg is being slowly amputated. 



Law and the Grievances of the Poor 39 

The city agencies look upon you like a seven year plague : 
wait and suffer and it will go away. They tell the lawmakers 
and the budgetmakers plaintively how much money you cost 
them with your endless litigation over "hopeless cases" and 
small sums. The judges are worried about backlogs and 
court delay and cannot stifle their annoyance when you ask 
for jury trials in eviction cases, interpose eight defenses 
(none of them yet established at law) to a rent action; file 
25 forma pauperis divorce petitions in one week. 

The appeals and test cases you hear so much about. They 
take so long. The test may be a success but the client has 
died, or been evicted, or moved away without his money. 
It takes over a year to get a case up to the Court of Appeals ; 
our program has been going on for almost five years and 
we're just getting decided the cases the law professors were 
talking about back in 1964. The most basic kind of law re- 
form will take decades in the courts; yet people think we 
should have gotten it done already. By the time you win the 
case, it's "old hat" in the law journals, and they tell you you 
should be thinking more innovatively. An antitrust suit may 
drag on in the courts for 5 years with teams of f ulltime law- 
yers and millions poured into ; but a landlord-tenant victory 
that takes that long leaves everyone mad at you. 54 

"The vast needs of the poor for legal services are not being 
met," an OEO-commissioned report says in 1969. 55 

Estimates of the number of poor persons needing subsidized 
legal services goes as high as 40 million and rarely as low as 10 
million. The American Bar Association says up to 20 million 
cases need free legal counsel. That would cost $400-$600 million. 
We now spend in the vicinity of 30 million. Individual legal serv- 
ice lawyers are now handling hundreds of cases a year, well 
beyond the toleration level for high quality service. If 250 OEO 
services programs and the legal aid programs which operate in 
600 of the nations 3,100 counties have not been able to even 
plumb the need, where do we turn ? If there were to be one law- 
year for every 6,000 poor, it would take 5,800 lawyers ; if lawyers 
were to be available to the poor in the same ratio as the general 
population it would take 137,000. One urban law expert pessimis- 
tically summed it up : "If all the attorneys in the United States 
did only legal aid work, the resources would still be inade- 
quate." 56 

Obviously, then, the OEO effort and the similar VISTA and 
Smith Fellows programs needs not only continued support but 
vast expansion if it is to make the desired impact. The legal 
services program will otherwise be another in a long line of broken 
promises to the poor. The expansion of the right of counsel into 



40 Report of the Task Force on Law and Law Enforcement 

every aspect of our "law-ridden nation" means that there must 
be counsel to implement that right. 

But even that is not enough. Radical experimentation must 
simultaneously pursue other lines to supplement the poverty 
lawyers. One way is to reduce the need for fullscale lawyers by 
creating mechanisms in our society for problem solving. Thus 
effective complaint or grievance centers and consumer fraud 
bureaus put the burden on government to right its own wrongs 
and to police sales practices. An American adaptation of the 
Scandinavian ombudsman has been urged, independent of gov- 
ernment yet a public servant ; 57 the practice is already being 
experimented with in Buffalo by OEO. Washington, B.C., had 
an experimental citizens complaint center and concluded from 
the experience that a "special expediter" in the Mayor's office 
and a "public protector" accountable to the City Council were 
necessary concomitants to any such center. 58 Lay mediators, 
community courts to settle disputes short of official justice, are 
another avenue of relief. An OEO-sponsored arbitration project 
in Cleveland deals with landlord-tenant differences ; a mediation 
service in Los Angeles ; a rabbinical court in Boston to bind fel- 
low communicants. The American Arbitration Association is 
training indigenous community leaders as conflict resolvers in 
their own neighborhoods, and it also offers its own services to 
merchants, landlords, and governmental agencies such as schools 
and urban renewal agencies in settling disputes with poor citi- 
zens. 

Self-help is being practiced by the poor themselves in banding 
together in tenant councils and welfare rights organizations to 
bargain collectively for their rights in the tradition of the early 
labor organizations. They negotiate, demonstrate, picket, boycott 
and even strike. In a few states they have received statutory 
recognition of their right to do so. 59 

There are, too, a burgeoning number of institutes financed 
by private foundations for research and litigation on urban 
problems. They specialize in the test case, the investigative re- 
port, and potentially in representing the interests of the poor 
before municipal bodies and before state and national legislatures 
and administrative agencies. 60 

Worthy of duplication also is the device of allowing counsel 
fees to be taxed against the losing party in certain kinds of suits. 
This is now done in Clayton Act and Civil Rights Act cases 
and might well be done in tenant suits and consumer fraud 
actions. Or the government itself might prosecute the claim by 
assignment as it now does in wage collection cases and reciprocal 
support actions. This technique might profitably be carried over 
into local support actions for poor wives. Several of the new 
welfare and health care laws include the right to a fair hearing 



Law and the Grievances of the Poor 41 

and insist that counsel be provided, if necessary at agency 
expense. HEW has recently announced its financial support of 
legal service programs by local welfare agencies that will provide 
across the board legal help to recipients. 61 The lawyers can 
come from the private sector, OEO, or public agencies (if no 
conflict results). 

Finally, there is a resurgent interest in the development of 
legal paraprofessionals who can handle the tremendous volume 
of paperwork in the investigating, interviewing, and "social 
work" that consume so much of a lawyer's time. Such legal 
specialists could leave the lawyer free to focus on the develop- 
ment and implementation of the winning strategy for the client. 
Initial research and limited experimentation has shown, how- 
ever, that development of these legal technicians is no easy 
task: the lawyer yields his prerogatives no matter how cum- 
bersome reluctantly. But efforts along these lines reap a double 
harvest: less routine and more productivity for the lawyer, 
and meaningful jobs for others. 

But the legal rights of the poor cannot be left only to OEO, 
Legal Aid, and public agency lawyers. The private bar must 
bear its share. In the past it has performed charity services 
through Bar Referral services, seldom taken advantage of by 
the poor. New directions are mandatory. One suggestion has 
been a mass program for assigning counsel to civil indigents 
in much the same fashion as is done for the criminally indigent. 
Some civil equivalent of the Criminal Justice Act would be nec- 
essary to compensate such counsel. 62 Several factors mitigate 
against success of any such scheme, however. 

Experience with assigned counsel under the Criminal Justice 
Act has shown that experience is the key to quality representa- 
tion. 63 And "compensating counsel does not itself guarantee 
better quality criminal defense." 64 Specialists in the field are 
preferred, whether the field be criminal or civil. Young lawyers 
in large firms do not need the money; in fact, many drift away 
if they think the need is being met by those who do need the 
pay. Despite good intentions, the occasional appointment must 
be given lower priority than the firm's retainer clients. Poverty 
law is, moreover, a specialized business : the OEO Poverty Law 
Reporter competes with the CCH Tax Service in the number of 
pages and the complexity of content. Representing a client at a 
welfare or social security hearing is just as demanding as repre- 
senting a corporate client before the Federal Trade Commis- 
sion. 65 Consumer and landlord-tenant law is probably developing 
faster than any other branch of law today ; it requires constant 
updating as well as intense familiarity with procedural forms 
and rules to do an adequate job. Poverty law is no more a 
"one-shot deal" than antitrust law. 



42 Report of the Task Force on Law and Law Enforcement 

The poor need specialized, continual legal help. Their civil 
problems are multifacted and require follow-up and time. And 
an assigned counsel system does not by itself provide the answer. 

A variation on the assigned counsel system is Judicare, 
which introduces the element of free choice. The poor man can 
pick out his own lawyer, and payment will be at specified rates, 
paid from public funds. The private practitioner in turn can 
integrate his poor clients into his regular practice. It is particu- 
larly attractive to struggling young black lawyers who want 
to serve their own people. The system has been tried in Wisconsin 
and New Haven. The Wisconsin plan pays 80 percent of the 
state minimum fee schedule (about $16 an hour). Judicare 
costs more than legal services attorneys (an estimated $60-70 per 
case completed) but a mix of the two is probably the most desired 
system. 66 

Other proposals for private bar participation are cropping up. 
Private law firms might donate the services of young associates 
for periods up to 18 months to neighborhood offices, OEO or 
jointly run with other firms. Backup clerical, library, messenger 
and senior consultative help would accompany the donation. 67 

The downtown firm might establish its own branch office in 
the ghetto. Members and associates would be rotated to the office, 
and enjoy the same firm privileges and status for their time so 
spent as their associates serving the more traditional clientele. 
Such a setup is billed to attract top young talent which wants 
to serve the poor at the same time they build a personal future. 
It represents a long-term commitment of firm resources to public 
service in an organized, effective manner. Two major law firms 
in New York and Baltimore have already pioneered this effort. 68 

Finally, there are constructive proposals to bridge the gap 
between the increasing black majorities in the inner cities and 
the predominantly white legal communities. Only 1 % of lawyers 
are black. Those black lawyers that do practice among the city's 
poor are usually underfinanced, overworked, and overwhelmed 
with charity cases. OEO lawyers increasingly recognize the 
desire of black people to be represented in proportion by their 
own people. One black lawyer put it this way: 

One need not be a "black racist" to see that a succession 
of young white knights on their legal chargers, over the 
long run, can have a negative effect. Disrupted self-image 
is as much a part of the ghetto syndrome as poverty. The 
black professional performing adequately and competently 
can provide role models that go a long way toward restoring 
the confidence that is a precondition for a people seeking 
nondestructive means of coping with their problems. He 
also can be the most potent recruiter of students for law 



Law and the Grievances of the Poor 43 

schools. By example he can encourage young blacks to see 
the law as a profession relevant to the needs of their people. 
Irrational forces are intensifying in the ghetto ; the lawyer 
is an excellent agent for rationalizing those forces and di- 
recting them into constructive channels. It is likely that 
only blacks dealing in good faith wth other blacks can ac- 
complish this. 

He suggests that downtown white firms subsidize black lawyers 
to work with the poor in the ghettos. The financial backing would 
allow the black lawyer to concentrate on high quality service 
to his people without fear of economic ruin. The firm could 
send its young associates who want this kind of experience to 
work with him. He could call on the firm's expertise to incor- 
porate black businesses, and he could be house counsel to poverty 
rights groups. Affiliations with law schools might provide addi- 
tional manpower in the way of third year law students. 69 

Providing adequate legal services for the poor is a job just 
begun. The OEO effort of the past five years has served mainly 
to show how huge are the dimensions of the job; what the pit- 
falls of high volume caseloads are; how laborious the process 
is of reforming a body of substantive law in effect since 1776; 
how frustrating serving an indigent client can be and how time- 
consuming and specialized is the practice of urban poverty law. 
Even with substantial expansion such offices can only do part 
of the job. New ways have to be found to provide alternatives 
to legal action for solving the problems of the poor ; more daring 
use must be made of nonprofessionals to perform subsidiary 
tasks now done by lawyers; and basic reorientation of institu- 
tions serving the poor is needed so that they are less often the 
poor's adversary. Concerted lobbying efforts are essential to 
block repressive laws, incorporate fair procedures, expedite 
modernization of statutory law governing merchant-consumer, 
landlord, tenant, government agency-citizen relations. The pri- 
vate practitioners can by no means relax with the idea that a 
corps of young, dedicated lawyers are "out there" doing their 
job. In no foreseeable future will there be enough lawyers to do 
justice. The firms must build into the fabric of their practice 
institutionalized and efficient ways to participate in civil jus- 
tice. They must give of their time, money, and thought. 

The cost of all this may seem astronomical. The alternative, 
however, is to build to the breaking point the accumulation of 
grievances that now have no effective means of redress in our 
political or legal system. We already know that this cost is too 
high for our society to bear. 



44 Report of the Task Force on Law and Law Enforcement 

CONCLUSION 

The poor have, if anything, more legal problems than the 
rest of society. The recent surge of efforts on their behalf only 
emphasizes the terrible needs yet unmet in our civil justice 
system. They make only a long-delayed beginning; new ways 
and more lawyers are desperately needed. Long-range strat- 
egems to reform laws and institutions that work unfairly against 
the poor must be simultaneously pursued along with justice in 
individual cases. More counsel for the poor is basic, the sine qua 
non. Court costs should be abolished. The poor need legal re- 
dress for their legal grievances; to be poor is bad enough; to 
be poor and denied justice is intolerable. 



REFERENCES 

1. Among the most intense grievances underlying the riots of the summer 
of 1967 were those which derived from conflicts between ghetto resi- 
dents and private parties, principally the white landlord and merchant. 
Report of the National Advisory Commission on Civil Disorders (herin- 
after cited as Kerner Report) (Washington, D.C.: Government Print- 
ing Office, 1968), at 92. 

2. Law in Action, June, 1968, at 3-4; See W. T. Grant Co. v. Walsh, 36 
Law Week 2626 (N.Y. Dist. Ct. 1966). 

3. Wright, "The Courts Have Failed the Poor," New York Times Maga- 
zine, Mar. 9, 1969, at 102. 

4. See generally, Littlefield, "Good Faith Purchase of Consumer Paper: 
The Failure of the Subjective Test," 39 So. Calif. Law Review 46 
(1966). Nine states have modified, to some degree, the absolute im- 
munity of the holder-in-due-course. 

Massachusetts, Oregon, Vermont, California, Delaware, Hawaii, New 
York, Pennsylvania and Texas. Most of these states however retain 
stipulations that the buyer notify the finance company of any defense 
within ten to fifteen days, after which all other defenses are waived. 

See also, S. 2589, 90th Cong., 2d sess. 4.102 (1968); Report Relating 
to Consumer Protection in the District of Columbia, at 5-9. The new 
Uniform Commercial Credit Code, proposed by a special committee 
financed primarily by the credit industry itself, recommends that the 
doctrine be abolished. 

5. A recent study in the District of Columbia found that in almost 70% of 
the default cases, the seller had assured the debtor that he need not 
come to court. Washington Post, Sept. 21, 1968, at Bl, B2. 90-95% of 
consumer cases in New York are default judgments. Caplovitz, Rubin, 
Sparer & Rothwax, Default Judgments in Consumer Actions: The Sur- 
vey of Defendants, Sept. 1965, at 1 (mimeographed release). 

6. Federal Trade Commission, Economic Report on Installment Credit and 
Retail Sales Practices of District of Columbia Retailers 10 (1968). 
FTC Chairman Paul Rand Dixon says that the agency would have 
found much the same situation "if we had studied Philadelphia, Louis- 
ville, or San Francisco." 2 Law in Action 1 (April 1968) 

7. Thirty states allow confession of judgment with certain limitations. Five 
states and the District of Columbia have ended the practice. Senate Com- 



Law and the Grievances of the Poor 45 

mittee on the District of Columbia Report Relating to Consumer Protec- 
tion in the District of Columbia, S. Rep. No. 1519, 90th Cong., 2d sess. 14 
(1968). 

8. Garney Miller v. Retail Adjustment Bureau U.S.D.C. #900-69. 

9. The Consumer Credit Protection Act recently limited garnishment to 
25% of a debtor's disposable income. Publ. L. No. 90-321, Tit. II, 202 
(May 29, 1968). Although some states require that the judgment debtor 
be notified before garnishment is served, the requirement is generally 
ignored in practice. Note, "Consumer Legislation and the Poor," 76 Yale 
L. J. 745, 766 (1967). See Jordon & Warren, "The Uniform Consumer 
Credit Code," 68 Colum. L. Rev. 387, 438 (1968). Brunn, "Wage Garnish- 
ment in California: A Study and Recommendations," 53 Calif. L. Rev. 
1214, 1245 (1965). Labor organizations have apparently been unable to 
bargain effectively on this issue. Id. See also Wald, "Law and Poverty" 
(prepared as a working paper for the National Conference of Law and 
Poverty, June 23, 1965). Note, "Project: Legislative Regulation of Retail 
Installment Financing," 7 U.C.L.A. L. Rev. 741-42 (1960). 

10. See Edwards v. Habib, 397 F. 2d 687 (C.A.D.C. 1968): Wright, supra 
note 3, at 108. 

11. Id. at 110. In 1964, Detroit redevelopment projects resulted in the uproot- 
ing of 5,530 families. 

12. LeBlanc, "Landlord-Tenant Problems" in The Extension of Legal Serv- 
ices to the Poor" 52-53 (U.S. Dept. of HEW, 1964). Sewer service is 
just as pervasive in the debtor field. An estimated % to % of consumer 
defendants in New York City are victims of sewer service. See Note, 2 
Colum. J.L. & Soc. Prob. 1, 10 (1966) ; Caplovitz, Rubin, supra note 5, at 
5; see generally Note, "Abuse of Process: Sewer Service," 3 Colum. J.L. 
& Soc. Prob. 17 (1967). A study of the Magistrate's Court in Philadel- 
phia showed that: 

"... constables are required by law to file a return of service stating 
the precise manner in which service was made. This return is the only 
evidence available to the magistrate to enable him to decide whether he 
had jurisdiction over the person of the defendant. Nevertheless, in one 
court no returns of service are made. In other courts, where thousands of 
returns of service were examined by Justice Investigators, it was found 
that hundreds of returns were defective on their face, and in all those 
cases the magistrate had proceeded to give judgments by default. 

"In some cases judgments were entered even though the constable's 
return stated affirmatively that he had been unable to make service at 
all." 

Report of the Attorney General on the Investigation of the Magisterial 
System 30 (Department of Justice, Commonwealth of Pennsylvania, 
1965). 

13. A few jurisdictions have enacted laws allowing tenants to collectively 
deposit rent into court until the landlord makes the necessary repairs, 
or allowing the city to make the repairs and charge the landlord. Neither 
have been a great success, primarily because there has been insufficient 
funds to accomplish substantial renovations of badly deteriorated build- 
ings. See, e.g., Multiple Residence Law 305-a (outside New York City) ; 
Multiple Dwelling Law 320-a (New York City). Michigan has gone the 
furthest to enact the "first substantial change in 1,000 years" in com- 
mon law landlord tenant relationships. In 1968 it passed a new law to: 

Require that every lease contain a pledge by the landlord that the 
premises are habitable and that they will be kept in that condition. 
The tenant thus has a cause of action if the landlord fails to comply 
with the covenant. 
Prohibit evictions in retaliation for the exercise of lawful rights, 



46 Report of the Task Force on Law and Law Enforcement 

such as reporting violations of housing codes to the city government. 
Make code enforcement a civil rather than a criminal matter, and 
an enable tenants to take court action to obtain enforcement. Legal 
remedies available to the tenant include injunctions, repairs by the 
city with a lien put on the property for the cost, appointment of 
receivers to make repairs, and withholding of rent in an escrow 
fund for repairs. 
See 3 Law in Action 5 (August 1968) 

14. Until the Supreme Court decision in King v. Smith, 392 U.S. 309 (1968) 
many jurisdictions would deny relief altogether to any mother who had 
a "man in the house" regardless of whether he helped support the child- 
ren. Most recently, the Court has invalidated the practice of most states 
to deny welfare to anyone not a resident of the state for at least one 
year, regardless of need. Shapiro v. Thompson, 89 S. Ct. 1322 (1969). 

15. Wright, supra note 3, at 111-12. Contrasts this with the attitude taken 
toward the numerous other subsidy holders in the American economy. 

Now a new philosophy of social welfare is struggling for accept- 
ance in this country. This modern school of thought considers de- 
pendency a condition ordinarily beyond the control of the individual 
and seeks to establish the status of welfare benefits as rights, based 
on the notion that everyone is entitled to a share of the common 
wealth. This conception of welfare seems justified in view of all the 
others in our society who receive government subsidies and largess, 
not as a matter of privilege or charity but as a matter of entitle- 
ment. For example, the transportation industry is dependent on 
public assistance; airlines are subsidized on short hauls; shipping 
is directly subsidized and indirectly aided by laws favoring Ameri- 
can-flag vessels ; trucking is aided by public roads. Second-class mail 
rates are essentially a subsidy to the magazine industry. Home- 
owners are given many types of financial guarantees and assistance, 
while farmers have been beneficiaries of public-assistance programs 
for many years. Other subsidies are less obvious. Docks and airports 
are supplied to the shipping and airline industries at public expense-; 
channels of the radio and television spectrum are given without 
charge to the broadcast industry. Intellectual activity, especially 
scientific research, is also subsidized. Perhaps the biggest subsidies 
of all are some of our tax exemptions. 

Despite the pervasiveness of public assistance throughout our 
economy, only the welfare recipient is singled out for special, de- 
grading supervision and control. When a farmer receives Govern- 
ment subsidies, the payments are not presented as relief but as an 
attempt to restore an imaginary balance in the economy, thrown out 
of kilter by large anonymous forces depressing agricultural prices. 

16. Professor Edward V. Sparer would base a right to public assistance on 
a "right to life" implicit in the Constitution. He views the refusal or 
withdrawal of welfare from a poor family as a "taking of life." Address 
to National Institute for Education in Law and Poverty, Washington, 
D.C., May 9-11, 1968, 3 Law in Action 7 (May 1968). 

17. Report by Greenleigh Associates to the Moreland Commission on Welfare 
78 (New York). 

18. Selby, "Watts: Where Welfare Bred Violence," Reader's Digest, May 
1966, at 69. 

19. 42 U.S.C. Sections 302 (a) (4), 1202 (a) (4), 1352 (a) (4), and 1382 (a) (4). 

Note, "Withdrawals of Public Welfare: The Right to a Prior Hear- 
ing," 76 Yale L. Rev. 1234 (1967). See generally, Reich, "Individual 
Rights and Social Welfare: The Emerging Legal Issues," 74 Yale L.J. 
1245 (1965) ; Reich, "The New Property," 73 Yale L.J. 733 (1964). 



Law and the. Grievances of the Poor 47 

20. The following examples are illustrative. The New York Department of 
Public Welfare discontinued benefits to one woman on the basis of an 
erroneous letter from the New York City Board of Education saying 
that the recipient was a fulltime employee. The Ohio Welfare Depart- 
ment terminated aid for the aged to one woman "at the request of the 
recipient," although notified that no such request had been made. In each 
case it took a court action to have aid reinstated. 3 Law in Action 8 
(May 1968). 

There are now lawsuits pending to require that withdrawal hearings 
conform to the following due process criteria. 

Specific notice of the basis for the proposed action ; 

Confrontation and cross-examination of persons giving adverse 

information; and 

A reasoned decision, based on the record, determining the issues 

raised at the hearing. 
3 Law in Action 8, 9 (May 1968). 

21. See, e.g., Parrish v. Alemeda Civil Service 57 Cal. Rep. 623, 425 P. 2d 
223 (1967). 

22. New York Post, Apr. 4, 1969, at 22. 

23. Standards of undesirability may be extremely vague. In New York City 
they cover families deemed: (1) a detriment to the health, safety, or 
morals of its neighbors or the community; (2) an adverse influence on 
sound family and community life; (3) a source of danger to the peaceful 
occupancy of the other tenants; (4) a source of danger or cause of dam- 
age to the premises or property of the Authority; or (5) a nuisance. 
New York City Housing Authority, Resolution Relating to Termination 
of Tenancy, Res. No. 60-8-684, Art. II, Sec. 202 (g) (1960), at 206. See 
Comment, "Title VI of the Civil Rights Act of 1964 Implementation 
and Impact," 36 Geo. Wash. L. Rev. 824, 997 (1968). 

24. The Department of Housing and Urban Development recently ruled that 
no tenant be given notice to vacate "without being told by the Local 
Authority, in a private conference or other appropriate manner, the 
reasons for the eviction, and given an opportunity to make such reply 
or explanation as he may wish." Local authorities are to maintain writ- 
ten records of evictions from federally assisted projects, including the 
specific reason for each eviction. Thorpe v. Housing Authority, 89 S. Ct. 
518, (1969). 

25. See, e.g., Knox Hill Tenants Council v. Washington (U.S.D.C., D.C. 
#22781, 196) on appeal to the United States Court of Appeals for the 
District of Columbia, #22781. 

26. A study of the New Jersey Civil Rights Division concluded that despite 
extensive statutory powers to initiate enforcement proceedings, 

it narrowly construed its powers to act at all, devised a series of 
procedural steps which operated against vigorous enforcement, and 
compromised and settled cases at a rather high rate, with a rela- 
tively low level of relief. 

Blumrosen, "Antidiscrimination Law in Action in New Jersey: A Law- 
Sociology Study," 19 Rutgers L. Rev. 187, 196 (1965); See also Report 
of the Governor's Committee to Review New York Laws and Procedures 
in the Area of Human Rights, March 1968, at 8. 

27. Comment, "Enforcement of Municipal Housing Codes," 78 Harv. L. Rev. 
801,807 (1965). 

28. "The simple fact is that the vast majority of us, in the comfortable 
prosperity of our affluent society, do not approve of the poor . . . [We] 
have set up every kind of barrier to exclude or discourage the desper- 
ately poor from even [a minimal] level of aid: arbitrary definitions of 
eligibility related to age, family relationship (such as the absurd require- 



48 Report of the Task Force on Law and Law Enforcement 

ment in many states that there be no man in the home), employability, 
duration of residence in the state, and every sort of procedural hurdle 
and humiliation." E. Wickenden, Administration of Welfare Rights, 2-3, 
4, paper presented at the National Conference on Law and Poverty, 
Washington, B.C., June 1965. 

29. The Moreland Commission Report, supra note 17, at 76, included the 
following : 

"From my own experience and research," said one witness at our 
public hearing, "50-60 percent of a caseworker's time is spent on book- 
keeping. I thought I would be able to help people, but I was a book- 
keeper." He related an instance in which an elderly couple each getting 
Old Age Assistance, and each treated as a separate case moved to a 
new neighborhood and the rent went up. To revise the rent allowance 
upward, the witness said, he had to fill out and file 30 different pieces of 
paper. This paperwork explosion plagues welfare workers everywhere 
. . . The files bulge with records in triplicate, quadruplicate and quin- 
tuplicate all designed to set forth facts and to substantiate action and 
justify reimbursement. Accountability is necessary. But at what point 
does filling out forms pass the point of diminishing returns, and become 
record keeping for the sake of record keeping? At what point does desk 
work become so demanding that social workers have little time to serve 
the needy and the dependent?" 

30. Unrealistically high caseloads intensify the problem. In 1964 there was 
one fully professionally-trained caseworker for every 23,000 relief recipi- 
ents. May, The Wasted Americans: Cost of Our Welfare Dilemma 104 
(1964). The turnover rate averaged 26% with 40% in many cities. Id. 
at 109. 

31. See, e.g., Carrier L. Guest, C 29589 (D.C. Dept. of Public Welfare) in 
which the hearing examiner made the following finding, accepted by the 
Department Head: ". . . the Hearing Officer is of the opinion that the 
evidence has established that the public assistance budget standards for 
the District of Columbia are not adequate to meet the cost of living for 
Claimant's family and the families of others similarly situated." 

32. "It seems to me that if one were disposed to blame courts for the present 
impasse in which we find ourselves, he could with a good deal more 
reason direct his attack not to the Supreme Court of the United States 
but to the courts of original criminal jurisdiction in urban centers 
throughout the country. These are the courts which meet members of 
the disadvantaged and alienated communities, and I think it must be 
said that unfortunately these courts have done great damage to the 
reputation of the law with these groups." Testimony of Dean Francis 
Allen before the Commission. 

33. J. Carlin, Lawyers' Ethics (1966), at 85-86. 

There is indirect persuasive evidence of the relation between the lower 
the court in the judicial hierarchy: (1) the lower the jurisdictional 
amount of claims (which means the more likely it will be used by lower- 
class persons), (2) the less likely that parties will be represented by 
private counsel (reflecting in part the fewer economic resources of 
parties whose cases go through inferior tribunals), (3) the more likely 
that lawyers who deal with the court will have a low-status clientele 
(see Carlin, supra), and (4) the more likely that the court will be proc- 
essing cases reflecting problems which occur more in the lower than the 
upper classes. Thus, it is among the poor that we find the highest rates 
of divorce, separation or desertion (See W. Goode, Family Disorganiza- 
tion in Contemporary Social Problems, R. Merton & R. Nisbet eds. 
(1961), at 416-28. Mental illness (See B. Berelson & G. Steiner, Human 
Behavior: An Inventory of Scientific Findings (1964), at 33. Juvenile 



Law and the Grievances of the Poor 49 

delinquency (See A. Cohen & J. Short, Jr., Juvenile Delinquency, in 
R. Merton & R. Nisbet, 1961), and drunkenness. (See D. Pittman & C. 
W. Gordon, Revolving Door, 1958, Ch 2.) At any rate, these problems 
are most likely to come to the attention of public officials when they in- 
volve the poor. The term "low level" or "inferior" tribunal refers to lo- 
cal or state trial courts of limited or special jurisdiction (including the 
family, drunk, psychopathic, small claims and juvenile courts) as op- 
posed to state trial courts of general jurisdiction and appellate courts. 
Court level is usually correlated with the salary and tenure of judges 
and their educational background and experience. (See Carlin, supra, 
Ch 5.). It is interesting to note that in California, which has a consoli- 
dated court system, assignments to those departments in the Superior 
Court that correspond to low-level courts in other states (such as ju- 
venile or domestic relations) are generally designated as the least desir- 
able by judges. 

34. The largest increase in the number of filings between 1928 and 1954 was 
found in the small claims, domestic relations, juvenile traffic and psycho- 
pathic courts. The smallest increase took place with respect to other civil 
cases; in fact, there was a 36% decline in the number of these cases 
filed in the Superior Court. See J. Holbrook, A Survey of Metropolitan 
Trial Courts, Los Angeles Area (1956), at 10, 14. 

35. ". . . [A] study of a magistrate's court in a large eastern city said that, 
in 13 minutes on the morning after a local newspaper ran an editorial 
under the title 'Get Bums Off Streets and Into Prison Cells," 60 persons 
were tried and convicted of vagrancy by a single magistrate. In several 
cases, a defendant was convicted after the magistrate simply called his 
name, looked at him and pronounced sentence usually three months in 
the city jail." Wright, supra note 3, at 26. 

36. Thus, in a study on mental health hearings conducted in Wisconsin it 
was noted: 

In one urban court (the court with the largest number of cases) 
the only contact between the judge and the patient was in a prelimi- 
nary hearing. This hearing was held with such lightening rapidity 
(1.6 minutes average) and followed such a standard and unvarying 
format that it was obvious that the judge made no attempt to use 
the hearing results in arriving at a decision. He asked three ques- 
tions uniformly: 

How are you feeling?" "How are you being treated?" and "If the 
doctors recommend that you stay here a while, would you coop- 
erate?" 

No matter how the patient responded, the judge immediately signified 
that the hearing was over, cutting off some of the patients in the middle 
of the sentence. Scheff, "Social Conditions for Rationality," 7 Am. 
Behav. Scien. 22 (March 1964). 

37. Handler, "The Juvenile Court and the Adversary System: Problems of 
Function and Form," 1965 Wise. L. Rev. 32 (1965). 

38. Judicial Council of California, 1962 Annual Report 151 (1963). 

39. C. Pragter, R. McCloskey, and M. Reinis, The California Small Claims 
Court 40, 45, 55, student paper, University of California, 1963, subse- 
quently published in condensed form in 52 Calif. L. Rev. 876 (1964). 

40. Report of the Attorney General of Pa., supra note 12, at 31. Court per- 
sonnel there even had a direct pecuniary interest in the outcome of the 
proceedings. 

Many constables own and operate their own registered collection 
agencies. Other constables simply advertise themselves as being in 
the collection business, while a third group of constables function as 
collection agents without forming a separate agency or openly 



50 Report of the Task Force on Law and Law Enforcement 

advertising as such . . . When money is obtained from a debtor, 
the constable collects not only a fee for serving process in the case, 
but also retains from 25 percent to 50 percent of the amount col- 
lected . . . 

As a result, constables are engaging in practices designed to 
terrify the average citizen and to make it clear to debtors that by 
reason of the constable's close association with the magistrate who 
will hear the case, any attempt to resist collection is futile. Id. at 27. 

41. See Murphy, "B.C. Small Claims Court The Forgotten Court," 34 B.C. 
Bar J. (Feb. 1967, pp. 14-15.) (Quote from interview with J. Murphy, 
Sept 18, 1968.) 

42. See Willging, "Financial Barriers and the Access of Indigents to the 
Courts," 57 Georgetown LJ. 253 (1968). 274 et seq. (1968). 

43. Judge Miller, U.S. Court of Appeals, speech at 1941 A.B.A. Convention, 
cited in 3 Law in Action 10 (May 1968). 

44. Koos, The Family and the Law 9 (1949); Brownell, Legal Aid in the 
United States (1951) (only 3 out of 5 poor families with legal problems 
recognized their need for legal help and only 2 out of 5 legal service). 

45. See e.g., Carlin and Howard, "Legal Representation and Class Justice," 
12 UCLA L. Rev. 381 (1965); H. O'Gorman, Lawyers and Matrimonial 
Cases 61 (1963). 

46. According to a Texas survey, 35 percent of respondents of low socio- 
economic status did not know a lawyer in their community, compared 
to 18 percent of those of upper- and upper-middle socio-economic status. 
J. Belden, The Court and the Community: A Study of Contracts, Com- 
munications and Opinions Regarding a Specialized Legal Institution 
(1956) (Unpublished manuscript at the University of Chicago Law 
School.) 

47. "Paraprofessionals in Legal Services Programs: A Feasibility Study," 
University Research Corporation for the Office of Economic Opportunity 
(1968), at 6. 

48. In 1921, the American Bar Association established a Standing Committee 
on Legal Aid Work and in 1922 recommended that "every state and local 
bar association ... be encouraged to appoint a [similar] Standing Com- 
mittee . . ." Brownell, Legal Aid in the United States (1951), at 151-2. 

49. There are now 600 Legal Aid programs in 3100 counties. Brownell 
claims that "the chief reason for the bankruptcy rule seems to be the 
desire not to lose the goodwill of merchants and other creditors from 
whom the societies must seek settlements for their clients." Others have 
perhaps been more candid by indicating that what is feared is not 
simply loss of goodwill but the loss of Legal Aid funds. Several partici- 
pants at the 1948 conference of NALAO observed: "That they encoun- 
tered objection to their handling [of] these [bankruptcy] cases from 
merchants, doctors, small loan companies and others who contribute 
generously to the Community Chest." Sudnow, "Normal Crimes : Socio- 
logical Features of the Penal Code in Public Defender Office," 12 Social 
Problems 415 (1965). In 1963 local Community Chests provided 53% of 
the funds for Legal Aid societies. 1963 Annual Report of National Legal 
Aid and Defender Association. 

50. 78 Stat. 516 (1964). See Guidelines for Legal Service Programs (Wash- 
ington, D.C.: Community Action Program, Office of Economic Oppor- 
tunity). See also Cahn & Cahn, "The War on Poverty: A Civilian Per- 
spective," 73 Yale LJ. 1317 (1964). 

51. Ortique, "Too Little, Too Late," 14 The Catholic Lawyer 158 (Spring 
1968). 

52. A district court recently ruled the hearing must precede the cutoff. 3 
Law In Action 6 (Dec. 1968). 



Law and the Grievances of the Poor 51 

53. All these cases are reported in 16 Welfare Law Bulletin (March 1969) 
and 3 Law in Action 6 (Dec. 1968). See also, Toll and Allison, "Advo- 
cates for the Poor," 52 Judicature, The Journal of the American Judi- 
cature Society 321 (1969). 

54. OEO Study, supra note 47, at 1. 

55. Id. at 10. 

56. Bellow, "The Extension of Legal Services to the Poor New Approaches 
to the Bar's Responsibility," speech given to the Harvard Susquecenten- 
nial Celebration 6 (1967). 

57. "In Scandinavia, that excellent institution called the Ombudsman assists 
the ordinary citizen in seeing that the law is not administered with an 
evil eye, or an uneven hand. He also assists the public official by clearing 
the air of unfound [sic] charges. In both ways, the Ombudsman helps 
safeguard the integrity of equal protection. The Ombudsman or rather 
the idea it embodies appropriately adapted to our governmental insti- 
tutions, towns, cities, states, and even the Nation could help in the reali- 
zation of our ideal of equal treatment of all citizens by government 
officials." Statement of Former Justice Goldberg, in Hearing on S. 1195 
Before the Subcommittee on Administrative Practice and Procedure of 
the Senate Committee on the Judiciary, 90th Cong., 2d Sess., at 5 (1968). 
See generally, Davis, "Ombudsmen in America: Officers to Criticize 
Administrative Actions," 109 U. Pa. L. Rev. 1057 (1961); Cloward & 
Elman, "Poverty, Injustice and the Welfare State: An Ombudsman for 
the Poor?" Nation, Feb. 28, 1966, at 230. 

58. OEO, Training and Technical Assistance Grants 7-8 (1967) (mimeo- 
graphed release) ; interview with Hugh D. Duffy, Chief, Planning & Re- 
search, Legal Services Program, OEO, Washington, D.C., Sept. 30, 1968. 
Institute for Political Service to Society, Red Tape (1968). See Wash- 
ington Post, Oct. 18, 1968, at Bl. 

59. See generally, Note, "Tenant Unions: Collective Bargaining and the 
Low-Income Tenant." 77 Yale L.J. 1368 (1968). N.Y. Real Prop. Actions 
Law, art. 7A (McKinney Supp. 1967). See Rich, "Civil Rights Progress 
Out of the Spotlight," 38 Reporter 25 Mar. 7, 1968. 

60. See, e.g., Columbia University Project on Social Welfare Laws, the 
National Office for the Rights of Indigents. 

61. Robb, "HEW Legal Services: Beauty or Beast," 55 A.B.A. J. 346 (1969). 

62. Federal courts have always been able to appoint counsel in civil cases. 
28 U.S.C. 1915. But they rarely do. In a District of Columbia study 4 out 
of 7 assigned counsel in civil cases "declined." The general view is that 
courts cannot insist on such services from lawyers. Willging, supra note 
42, at 264. 

63. Oaks, "Improving the Criminal Justice Act," 55 A.B.A. J. 217 (1969). 
Average compensation was $120 for trial court representation and $322 
for appellate court. 

64. Id. at 220. 

65. Many OEO lawyers candidly admit they are reluctant to call in volunteer 
lawyers on a one-case basis because "it is easier to do it yourself" than 
to answer all their questions. 

66. Habermann, "Judicare," 117 Pitt Legal J., March 1969. 

67. Kiigis, "Law Firms Could Better Service the Poor," 55 A.B.A. J. 232 
(1969). 

68. See "Elite Law Firm Opens Office in Ghetto," Washington Post, March 
20, 1969, at A19. 

69. Clark, "The Minority Lawyer: Link to the Ghetto," 55 A.B.A. J. 61, 64 
(1969). 



CHAPTER 4 

GOVERNMENT AND THE 
"FORGOTTEN MAN"* 



During the last months before each Presidential election, the 
attention of the movers and the shakers of .U.S. affairs turns to 
the "Forgotten Man," that great mainstream American who by 
the force of his ballot elects the man who shall lead the Republic. 
At the climax of the process, the chosen leader goes on to try 
to fashion a "Return to Normalcy" or a "New Deal," a "New 
Frontier" or a "Great Society." The Forgotten Man goes back 
to work, not to be formally consulted again until the time comes 
to ratify the President's stewardship or to replace him with an- 
other. 

The Forgotten Man often feels that even at election time he 
does not have a choice of whom he wants as President, but a se- 
lection of two or three candidates that the kingmakers of rival 
power groups have offered him. In part, this explains why the 
"Forgotten Man" often does not go to the polls. It also explains 
the woman next door who never votes "because it just encourages 
them" : she is the Forgotten Man's wife. 

Between elections, the Forgotten Man feels he has even less 
influence over what the President and the lesser leaders do or 
do not do. His voice is heard in the councils of the mighty only as 
translated by pundits who assert they speak for him, or by 
pollsters who claim to have consulted a controlled sample of 
him from which it is possible to generalize. In truth, politicians 
from the White House to the Courthouse do listen to the pundits 
and read the polls, and they do pay attention. When the message 
is writ large enough, they sometimes take direct and drastic 
action, as in the case of President Johnson's abrupt retirement. 

But situations are seldom that clear-cut. That is the big prob- 
lem in dealing with the Forgotten Man : there are so many of him, 



* This chapter is based largely on a paper contributed by Arthur B. 
Shostak, Associate Professor, Department of Social Sciences, Drexel Institute 
of Technology, with additional materials supplied by William Edward Callis. 

53 



54 Report of the Task Force on Law and Law Enforcement 

each with his own attitudes and anxieties, that the composite 
which constitutes him can be difficult to determine. 

WHO IS THE FORGOTTEN MAN? 

The Forgotten Man is the man in the middle, in the majority, 
the ordinary guy for whom exceptions are not made. He is nei- 
ther so poor that the government thinks it must try to rescue 
him, nor so rich that he can exercise independent power. He is un- 
organized, so that he is (and, more important, feels he is) alone 
in his dealings with government, which aside from his rather 
remote vote, generally consists of IBM cards and form letters 
and more-or-less indifferent clerks who cite regulations as to why 
this must be done in exactly that way or perhaps, for no good 
reason, cannot be done at all. The clerks, of course, get theirs 
when they have to deal with some other government agency. 

Generalities about government being of, for, and by the people 
do not comfort the Forgotten Man when he sees the same govern- 
ment that socked him with a severe penalty for late payment of 
part of his $2,403.16 income tax, now forgive a million-dollar 
defaulter for 100 on the dollar (and issue a press release bragging 
about it) , or when he sees his taxes apparently going to support 
minorities who rant and riot in protest over his more privileged 
way of life. 

The Forgotten Man, patronized by his so-called friends as 
"the little guy" and sneered at by his so-called superiors as "the 
great mindless mass," is in fact the source of stability and con- 
tinuity in American life. He does his job, pays his taxes, obeys 
most of the laws, loves his country, gets along with his neighbors, 
cares for his family, goes to war when he must, stores up such 
treasure as he can, usually goes to church, and takes what plea- 
sure can be found in this land of plenty which does not seem 
quite plentiful enough for him in a world of want. Running hard 
to hold his place or maybe to get a little ahead, he is warned by 
prophets on every hand that his fragile world is in danger of 
destruction from the right by militarism, from the left by com- 
munism, and from the center by complacency the sin so often 
and unthinkingly charged against those who lead "lives of quiet 
desperation." 

It isn't that the Forgotten Man isn't worried; it's just that, 
according to exhaustive polls, if you talk to ten of him, you will 
find that three don't feel they have any say in what the govern- 
ment does, four don't think politicians care what they think, and 
seven often find they just don't understand what's going on. 

The following tables are from the Violence Commission's sur- 
vey of October, 1968. 



Government and the "Forgotten Man'* 



55 



Degree of Endorsement of Political Efficacy Items 
[In percent] 



Item 



Overall 



White Nonwhite 



People like me don't have any say about 
what the Government does 


35 


35 


41 


Voting is the only way that people like 
me can have any say about how the 
Government runs things 


54 


51 


73 


I don't think public officials care much 
what people like me think 


43 


43 


51 











Those with lower income and lower education feel even less 
politically effective than those who are better off in these respects. 

Agreement on Political Efficacy Items for Income and 

Educational Levels 

[In percent] 



Income 



Education 









10,000 




Some 


High 






5,000- 


and 


8th 


High 


school 




5,000 


9,999 


over 


grade 


school 


graduate College 


People don't 














have any say 


49 


33 


26 


49 


43 


33 22 


Voting is the 














only way _ 


65 


55 


43 


72 


66 


53 34 


Public officials 














don't care _ 


57 


42 


31 


60 


53 


42 25 



The Forgotten Man identifies as an American who simultane- 
ously is certain and confused about the meaning of current 
events. He has confidence in ("This is a great country") and 
yet is quite concerned about the quality of public servants and 
political affairs. He becomes, therefore, the natural prey of the 
political extremists, especially of the populists and the far right, 
who offer simple answers to mind-boggling questions. 

These self-contradictory ways explain the Forgotten Man's 
volatile character and his erratic impact on the American scene. 
Confused, for example, about the justice in civil rights cam- 
paigns, he is almost certain that the social and racial status quo 
cannot or should not be changed quickly. Confident his govern- 
ment is worth the ultimate defense in a contemporary over- 
seas war, he is still suspicious of that government. 1 Law- 
respecting, he is open nevertheless to the beliefs of extremists 
bent on rewriting the laws to their own purpose. Overall, the 
single most widespread concern of the Forgotten Man is over the 
"decay of values" as evidenced by street crime, race militancy, 
college protestors, Mafia inroads, political scandals, bureaucratic 



56 Report of the Task Force on Law and Law Enforcement 

ineptitude, and the like, but going beyond this decay to include 
everything that suggests people no longer act in accordance with 
decent values and right reason. The very virtues he holds to are, 
in his eyes, conspicuously absent from society as a whole and 
herein is the source of his discontent. 2 

The Forgotten Man does not perceive himself as a racial bigot, 
a witch-hunting super-patriot, a subversive, or a vigilante. 
Rather, he thinks of himself as "very much open-minded." As the 
receptive potential audience for racists, super-patriots, and ultra- 
vigilantes, the Forgotten Man can bolster or detract from the 
significance of their violence-supporting activities. With his 
massive numbers, the Forgotten Man is the key of their power. 
His decision about their appeal is far more important than that 
of the scanty number of erratic "true believers" on the far left 
or far right who receive far more exposure in the mass media. 

PROFILE OF THE FORGOTTEN MAN 

Much of the confusion in public and academic discussion in 
this matter reflects mutually-contradictory identifications of the 
Forgotten Man as a backwoods or "white ghetto" Wallaceite, or 
as a reluctant "old liberal" Democratic backer of candidate 
Humphrey. Some represent the Forgotten Man as lacking confi- 
dence in all levels of government, or especially in federal levels 
of government, or in all forms of authority, extending beyond 
the state to include labor and business institutions. 

The Forgotten Man is best understood as essentially four differ- 
ent types of men. All share certain attitudes in common, but differ 
in their actions in a clearly identifiable way. The Forgotten Man's 
hang-ups include resentment, envy, disappointment, and uncer- 
tainty* 

Resentment ties to a perception of a loss of status and power 
to less well-off men (especially black Americans). In his eyes 
certain out-groups (or "minorities") seem to be sharply closing 
the social distance that previously had them "castes away." 

Envy, associated with resentment, ties to the notion that the 
"power-grabbing" out-groups have potency and actual success 
in climbing the social ladder. 

Disappointment draws on the notion that elements of govern- 
ment are not only not neutral, but have "gone over" to support 
the outgroup power-grabbers, and that all large organizations, 
whether government, labor, or business, "have it in for the 
little guy" the plain citizen who is voiceless, powerless, and 
friendless. 

Uncertainty ties to a commonplace historic preoccupation with 
political eccentricity and violence, that ours is a political record 



Government and the "Forgotten Man" 57 

of innumerable splinter parties, and of a bloody political history 
(e.g., Shay's Rebellion, the Civil War Draft Riots, the presidential 
assassinations, and the like) . If anything worries the Forgotten 
Man more than where the government is heading, it is the pos- 
sibility that it all may come crashing down. 

The Forgotten Man may take his own beliefs quite seriously, 
yet while holding them, he may entertain considerable doubts 
about them. He may be willing, even anxious to act on them, or he 
may be unwilling, even quite reluctant to take any overt action 
to support them. 

At one extreme, a very small number of "hard core" Ameri- 
cans unreservedly endorse the Forgotten Man's resentment, envy, 
disappointment, and uncertainty, and they seek ways to act on 
these beliefs. Many "prefer the primer to the history text, and 
the quick-action revolver to both." In contributing to what Rich- 
ard Hofstadter has identified as the "paranoid style" in our 
politics, the hard core nativists and segregationists supply 
"heated exaggeration, suspiciousness, and conspiratorial fan- 
tasy." 4 

At the other extreme from the tiny minority of hard core types 
is the vast majority of "quiet" types. Drawn from lower-middle- 
class ranks of respectable Americans, they want a return to the 
simple life, the "good old days" of American mythology. They 
avoid taking much action. Typical here are many of the suburban 
supporters of President Nixon, especially those who left the 
Independent or Democratic ranks to vote Republican in 1968 for 
the first time. 

The next largest category, that of "inactive," is the Forgotten 
Man who takes his own self -identifying attitudes quite seriously, 
but cannot bring himself to act on his beliefs. Typical here are the 
millions of blue-collar trade-unionists who only deserted the 
Wallace candidacy in the closing days and hours of the campaign 
finally to vote for Hubert Humphrey and the traditional straight- 
Democratic ticket. 

The fourth category, on the other hand, involves the "unmoti- 
vated," men who behave more earnestly than they believe. 
Typical are men who feel themselves compelled by the attitudes 
or urging of workmates, neighbors, or relatives to engage in ra- 
cial discrimination or protest voting in a way which leaves them 
vaguely convinced that someone else is making decisions for 
them. 5 

The four types Hard Core, Quiet, Inactive, Unmotivated 
can become volatile in the extreme. Large numbers of these 
people frequently shift among the four categories, making it 
difficult to do more than loosely rank the blocs from large to small 
(quiet, inactive, unmotivated, hard core) and to stress how major 
political developments (riots, assassinations, close election out- 



58 Report of the Task Force on Law and Law Enforcement 

comes, etc.) can lead to major shifts in the size, rank, and char- 
acter of the four constituencies. 

All four types but especially the Inactive category include 
women. Zealous in defense of their children's head start over 
others, the use of secular schools to reinforce sacred pieties (as 
with Bible-reading) , and the reduction of the spirit-breaking 
tax load, millions of women form a strong force in perpetuating 
the Forgotten Man's attitudes. Examples range from the shriek- 
ing demonstrators outside Little Rock High School in 1956 to 
the millions of fearful, repressive "Law and Order" admirers of 
candidates who espouse greater use of the death penalty. 

All four types but especially the unmotivated draw on old- 
sters for membership. Often deliberate non-voters, and com- 
monly nostalgic admirers of a better time long since passed, 
many old-timers experience all four Forgotten Man feelings of 
resentment, envy, disappointment, and uncertainty. Strong in 
defense of life-honored guidelines, like "folks should know their 
place," in defense of the justice of insisting others should also 
"make it the hard way," and in defense of massive govern- 
ment economies (in all but old-age benefits), millions of old- 
sters support the attitudes held by the Forgotten Man as a way 
of protesting against the human costs of growing old in 
America. 

Unlike the included women and oldsters, those excluded from 
the ranks of the Forgotten Man are the very well off and the 
very poor. The former are not especially concerned with losing 
status and power to others, while the latter are conscious in 
recent years of securing small increments of status and power. 
Neither qualifies as "forgotten." While individuals in both 
classes may share specific attitudes and goals with the Forgotten 
Man, the necessary four-part complex of attitudes is seldom em- 
braced as a whole by the bulk of the class members. 

By this process of definition by four attitude-behavior types, 
and of exclusion by two social classes, we have a provocative 
residual understanding of the "Forgotten Man." Capable of a 
wide range of attitude and behavior, the Forgotten Man proves 
on analysis to be at least four kinds of men. Commonly drawn 
from median-income earning ($6,000-$12,000) blue-collar and 
lower-echelon white-collar workers, with median educational 
achievement (high school or less), and both suburban and urban 
residence, the Forgotten Man begins to look like an American 
Everyman. 

PORTRAITS OF THE FORGOTTEN MAN 

With a breath of individuality to give life to the foursided 
Forgotten Man, here are some singular portraits of the Hard 
Core, the Quiet, the Inactive, and the Unmotivated: 



Government and the "Forgotten Man" 59 

1. Hard Core 

Mrs. Gaboon is a thirtyish lady who would be very at- 
tractive were it not for the fact that her lips are nearly al- 
ways compressed in a thin line. She was alerted to the com- 
munist conspiracy by the way the Virginia Highway Depart- 
ment acted when they paved the road in front of her home in 
Roanoke. Mrs. Cahoon was born and raised in Iowa and 
moved to Virginia with her husband, a Marine sergeant she 
met at a dance sponsored by the Grange to raise money for 
a memorial to the town's Vietnam dead. When they built 
their home it was on a dirt road, and they liked it that way. 
But more people built nearby, and finally they petitioned 
the State to pave it, over the objections of the Cahoons and 
one or two others, who also didn't want high-speed traffic 
endangering their children. 

When the paving project neared her home, a man appeared 
at her door to inform her that the arbor vitae hedge along 
the front of their lawn would have to be dug up and moved 
because it was in the State's right-of-way. He asked her to 
show him where she would like to have the bushes re- 
planted by his men. Now Mrs. Cahoon knew that their 
property line extended to the center of the road, and she 
was damned if anybody was going to touch her arbor vitae. 
There was much showing of plans and explanation of high- 
way easement, but Mrs. Cahoon would not be moved. Some 
days passed and a morning came when the highway district 
superintendent told his foreman to have the bushes dug up, 
taking care to keep plenty of soil around the roots, and place 
them gently on the Cahoon property outside the right-of-way. 
Mrs. Cahoon was washing dishes when she looked out the 
widow and saw what they were doing and came out the 
door wildcat fashion. She scratched the foreman. He called 
the police. They told her about the law and she told them to 
go to hell. They took her to jail. The judge scolded her and 
put her under a peace bond, "after they had locked me up 
and this big fat woman with dirty fingernails (the jail 
matron) made me take off all my clothes and she poked me 
all over and I mean all over, I can't tell you any more than 
that, and the deputy said some dirty things to me you 
wouldn't believe. They treated me like a criminal, like I was 
a nigger." And the arbor vitae died. 

Some years have passed since then and Mrs. Cahoon, who 
had had no previous experience with politics, has become 
involved in the Wallace movement. She is basically a shy 
person, but her new zeal is such that she finds herself able 
to knock on doors in neighborhoods where she knows Wallace 



60 Report of the Task Force on Law and Law Enforcement 

people are not openly acceptable and to pass out literature 
on the street. She is a little impatient with Wallace sometimes 
("I wish he'd stop talking about running over one of those 
freaks and go ahead and do it") but she believes the move- 
ment will prevail. "We got 18 million votes, and we're going 
to win next time," she said. "The people are waking up. 
They're not going to stand for being pushed around by a lot 
of reds and fairies and niggers. We've seen what happens 
when the Federal Government sets up the niggers to run 
everything. In that riot in Washington the nigger police 
encouraging their 'soul brothers' [she says the word as 
though it had quotes around it] and the white police couldn't 
do nothing about it because the nigger mayor wouldn't let 
them. I know plenty of people who saw it, right out in the 
street." 

She understands now why she was treated so badly in 
the squabble over the road. "If I was a police officer and had 
my hands tied so I couldn't arrest anybody even if I saw 
them rob a man and they get turned loose next day anyway, 
I'd feel mean too." 

Mrs. Cahoon confidently expects to see the Russians take 
over this country if Wallace doesn't get in. "They have so 
many people paying niggers and college students to agitate 
and start riots it takes two whole floors of the U.N. building 
just to hold them," she said. 

Against that day her husband has outfitted the house with 
semi-automatic surplus military arms and what appears to 
be about 10,000 rounds of ammunition. Her husband has 
taught her how to operate them, and she can field strip an 
M-l carbine in the twinkling of an eye. 

2. Quiet 

Vitale is a 55-year-old mother of two children, one an 
attorney and the other a schoolteacher. Separated from 
her husband when the children were still infants, she went 
to work as a laborer in a New Jersey textile factory to sup- 
port herself and her children. A second generation American 
of Italian descent, she had been forced to quit school at the 
age of 16 to help support her own parents and 7 brothers and 
sisters during the depression, earning more than her father 
was making. 

Still working in the textile factory, she has long been a 
member of a textile workers union. She has never crossed a 
strike line even though she describes her union leaders as 
corrupt and lazy. "They drive around in Cadillacs while I 
work my hands to the bone. They're in cahoots with the 
bosses anyway. They get their payoffs for not starting any 



Government and the "Forgotten Man" 61 

trouble and then they raise our dues." But Jimmy Hoffa was 
all right. "At least he got the men good wages." 

Corruption doesn't anger her too much, however, for she 
realizes it is just part of a broader conspiracy. "It's the 
politicians who cause all the trouble. They ought to throw 
them all in jail." 

One day in 1960 she read in the newspaper about a sit-in 
at a segregated southern restaurant, and that stunned her. 
She hadn't realized that Negroes in the south were treated 
that way. She liked John F. Kennedy, as she had liked Frank- 
lin D. Roosevelt, because he was for the "little people. The 
Republicans are just for the rich people." After his election, 
she had listened attentively to each of his television addresses 
as she had listened to Roosevelt's fireside chats. The assas- 
sination shocked and grieved her. A strong woman who had 
not cried for years, she wept bitterly. 

She did not like Lyndon Johnson. Things were beginning 
to happen in the country that she could not understand and 
she expected the President to explain them to her. She tried 
to listen to his televised speeches, but they made no sense. 
"Just a lot of bullshit, if you'll excuse my language." 

The riots distressed her. "What they ought to do is shoot 
them all. That will keep them off the streets." On top of 
that, her factory was hiring blacks that "don't know their ass 
from a hole in the ground." One black man in particular 
infuriated her. "He's with the NAACP, so they can't fire 
him or else they would be accused of 'discrimination' even 
though he doesn't do a damn bit of work. If I did what he 
does I'd be out on the street. The damn nigger. And the 
union is behind it all. What do they care. They get more dues 
to feed their faces." 

The war on poverty did not make any sense to her. She 
made $15 dollars a week during the depression, worked hard 
all her life, put her children through college, and still man- 
aged to put some money aside for a rainy day. Now her 
children could take care of her in her old age and she could 
babysit for them. That was the way it was supposed to be. 
Her father never had to accept any welfare, even during the 
worst of the depression. "Nobody ever gave me anything. 
I worked for every penny I have. The problem is those damn 
niggers just don't want to work. They like being on welfare. 
All they do is spend it on liquor and color television any- 
way. They have babies just so they can get more welfare." 

It was no surprise to her when the local newspaper un- 
covered a welfare scandal. "Those damn politicians are all 
crooks. They bring the colored people up from the south by 
promising them a lot of welfare. That's the way they get 



62 Report of the Task Force on Law and Law Enforcement 

their votes and stay in office. I know. Everybody at the shop 
agrees." 

She did not want to have anything to do with Goldwater 
because "if he got in, he'd get us into a war." War wasn't 
any good. "They just make rich people richer. Rich people 
like wars. More business for them." One of her brothers and 
many of her friends had been killed during World War II and 
she did not want her son to go to Vietnam. She thought 
about it a lot, then went to see her state Senator, whose 
family had known her family from the "old neighborhood," 
to see what he could do. "The rich kids don't go to Vietnam. 
Their parents get them out of it. It's not what you know, 
it's who you know. Connections that's everything. Let them 
niggers fight. They want to fight so much, ship them all to 
Vietnam. And all those college students who want to fight, 
taking over buildings and things. That will get them off the 
streets." 

She did not get to see the Senator. "He's a busy man. But 
his secretary was nice. She took down all the information 
and said 'footsie,' that's what we used to call him in the 
neighborhood, would see what he could do." Neighborhood 
ties were never tested, however. Her son enlisted soon there- 
after. "I guess it's better this way. The men have to fight. 
That's the way it always was, always will be." 

She liked Robert Kennedy, though not as much as John. 
She would have voted for him had he not been assassinated. 

After the conventions, she turned to Wallace. "Humphrey's 
just a tool for Johnson. Nixon is still a Republican." She 
voiced her choice to her friends and relatives loudly. In the 
end, she voted for Nixon. "Wallace didn't have a chance. If 
I voted for him I would just be throwing my vote away. 
Nixon was the next best thing, even though he is a Republi- 
can." 

She argues politics a lot with her children. Her son is a 
liberal, and although she can't understand how a bright boy 
like himself can be so stupid sometimes, he does raise points 
she hadn't thought about before. 

But she cannot understand what he sees in the youth 
movement. "They ought to beat them over the head with their 
clubs. That's the way they did it when I was young. You 
never caught us talking filthy to policemen. Daley knew what 
he was doing." 

But she has no great love for policemen either. "They're 
just like the rest of them. They're in on all the deals with 
the politicians. I see them, sitting and drinking coffee all 
day in diners. My house was robbed and they didn't know 
enough to take fingerprints. I showed them a greasy finger- 



Government and the "Forgotten Man" 63 

print and, you know, they never took it. The stupids!" She 
thinks they are mostly bullies, anyway. "John Valone is a 
cop. We went to grammar school together. He used to push 
the little kids around then, and he still does the same thing 
now. He hasn't changed a bit. Given them a badge and a club 
and all of a sudden they're big deals." 

She liked Ted Kennedy, and Julian Bond is a "pretty nice 
young man," but somebody had better "damn well listen to 
Wallace. He's the only one who makes any sense." 

3. Inactive 

Wilson is a 48-year-old white native of West Virginia who 
except for service in Europe in World War II (Bronze Star 
and Purple Heart) has lived all his life within 20 miles of 
Charleston, W. Va. He is of Anglo-Saxon (early mountain 
pioneer) stock, and is a former coal miner and son and 
grandson of coal miners. Since the war he has worked as a 
carpenter because when he was discharged he discovered 
that the mine where he used to work had been bought and 
closed down by a large steel corporation (as part of a pro- 
gram to acquire reserves of coking coal for future needs). 
"The Government promised we'd get our old jobs back when 
we came home," he said. "I know for a fact they tried to 
keep veterans out of jobs so we'd have to go on the welfare. 
That way we'd have to do what the Government said or 
starve, because they'd cut a man off like that if he didn't do 
what he's told." 

Wilson does not distinguish among local, State and Federal 
Government agencies and officials, feeling that they all "set 
their hand against the little man." The only difference 
among them, he said, "is they start off with a County office, 
and they learn how to steal. When they get pretty good they 
get a State job; and the ones that steal the best, they go to 
Washington." He says they steal better than half of what he 
makes every year Wilson is a very good carpenter and 
gets steady work that brings in between $8000 and $10,000 
a year in indirect and direct taxes and "the way they keep 
prices high to soak up any loose money they might have 
missed. 

"They" are not just Government officials but big business 
as well. Possessed of but a seventh-grade education, Wilson 
doesn't use terms such as "the military-industrial complex," 
but he talks of the Government "taking all our tax money 
and giving it to the big companies to spend on crazy things 
like rockets to the moon. They land one on the moon and find 
out it's made of dirt. So now they got to send a man up there 
with a shovel so he can bring a pail of it back. If they want 



64 Report of the Task Force on Law and Law Enforcement 

dirt, I got a whole mountain of it in the back part of my 
place, and I wouldn't charge them nothing like what they pay 
them rocket boys. I got to work all my life so they can take 
my money and throw it at the moon." 

Wilson is a "lay minister" of an unaffiliated fundamental- 
ist Protestant church (the "chief preacher" is self -ordained) 
and an effective public speaker. He has for some years been 
active in the Federal anti-poverty program, principally as a 
recruiter of young men who are unemployed or under- 
employed for the Job Corps or the local community action 
program. While he's at it, he manages "to slip in a word or 
two about the love of God," and has significantly increased 
the number of young man attending his church. He has no 
difficulty reconciling his enthusiasm for the poverty program 
with his distrust of all Government: "They just making 
suckers out of us, trying to keep the people quiet. But while 
the money's floating around we try to get a piece of it. It 
helps the youngsters some." 

Wilson is pessimistic and cynical about the future of 
his country, believing that the Government is not of, for, 
or by the people and not likely to become so. His solution? 
"Revolution," he says, in a shockingly quiet and offhand way. 
"Them boys is dug in deep, and they ain't going to let go. 
We gonna have to drag a lot of them out and shoot them." 
It should be emphasized here that Wilson is a quiet, court- 
eous, peaceful man, deeply religious, a more than ordinarily- 
devoted husband (his wife is a chronic invalid) and father of 
three children in their late teens who are all married and 
have moved to Chicago. He lives in a rambling, much-added- 
to cabin that he keeps in good repair. It is surrounded on all 
sides by lovingly-tended flowers which he has planted "be- 
cause they are nice for the old woman to look out upon." 

He believes his attitude towards Government is shared by 
most of his peers and thinks that the recent emphasis on 
firearms control is the Government's response to the revolu- 
tionary threat. "They're scared and they're trying to get 
our guns away." His attitude does not seem to have any tint 
of racism ; his populism is pure and embraces those he calls 
without embarassment or overemphasis "our black 
brothers." He believes the FBI killed King and both Ken- 
nedys "because they were stirring people up." 

4. Unmotivated 

Cummings is a cop that's the word he uses and has 
been one for 30 years, first in Hampton, Va., and now in 
Norfolk. Although he is clearly of average or better intelli- 
gence, he has remained a patrolman because he cannot pass 



Government and the "Forgotten Man" 65 

the written test upon which promotion partly depends. He 
has an unblemished service record and has been cited several 
times for outstanding performance, but put him at a desk 
with a pencil in his hand and he freezes up sweats up, 
rather and forgets "every damn thing I ever knew." Once 
they gave him the test orally and he gave every answer cor- 
rectly, but the requirement that he write an essay on some 
aspect of police work could not be waived. "I like working 
the street anyway," he says. 

He can't work the street any more. The department had 
to pull him off because he cannot cope with the investigation 
and arrest procedures required by Supreme Court rulings 
over the past several years. "I've spent all my life learning 
how to be a cop," he says. "If they'd told me I was going 
to have to be a judge and lawyer too, I'd have been a 
mechanic like my oF Daddy." The guidelines set down in 
Escobedo, Miranda, etc., may not seem very complicated. But 
Cummings, like many law enforcement officers, finds them 
strange and intimidating. "You know," his sergeant said, 
"it's a funny thing, but he didn't have any trouble until we 
had a seminar to explain some of the new rules. They aren't 
very different from old department policies anyway, but 
Cummings went right out and blew one of our biggest vice 
busts (arrests) in years. We told him to take one of the guys 
in and book him and he takes the guy to his (the defendant's) 
girl friend's house and keeps him there for half the night, 
trying to sequeeze information out of him and looking for 
narcotics." 

"The Supreme Court says once we take a suspect in we 
can't talk to him, so I figured I'd take him somewhere else 
and talk to him first," Cummings said. He wasn't officially 
reprimanded, but after ruining or complicating several suc- 
ceeding cases, he was assigned to station duty. Which means 
paperwork. Which he says he can't do. He's going to retire, 
and he's bitter. 

"Police work used to be something a man could be proud 
to do," he says. "Now cop is a dirty name. You give a nigro 
(he seems to be halfway between "nigra" and "Negro," 
pronunciation-wise) a parking ticket and he falls down on 
the sidewalk and starts hollerin' police brutality, and they 
have a riot. You see a guy snatch a purse and you got to 
recite the Declaration of Independence at him while you're 
chasing him. You can't shoot him so you got to hope he'll 
start laughing and lose his wind. And then if you catch him 
he'll jump up and down and say, 'I'm guilty! I'm guilty!' 
and that means you got to let him go if he confesses before 
you can get a gag on him. You pull a guy in for stealing 



66 Report of the Task Force on Law and Law Enforcement 

a quarter and the City buys him a hundred dollar lawyer to 
convince the judge to let him go. Pretty soon it'll be a Fed- 
eral offense to arrest a murderer." 

Cummings can and will go on in this vein for hours, but 
somehow it isn't convincing. It seems likely that Cummings 
has not been able to adjust to other facets of his work that 
have changed in recent years. The department has a substan- 
tial race relations program going, and conducts workshops 
designed to alert the men to their delicate role in society. 
It is a far cry from the "run 'em off or run 'em in" days, 
and Cummings does not seem to be a man who is given to 
introspection and situation ethics. He's not interested in 
trying to see himself through a black man's eyes the better 
to understand how to avoid a confrontation. Cummings 
thinks people who go around confronting cops ought to go to 
jail for disturbing his peace. 

ATTITUDES OF THE FORGOTTEN MAN: 
HISTORICAL SOURCES 

Why does the Forgotten Man believe as he does? What combi- 
nation of common elements from the nation's recent history 
especially explain the prevalence of resentment, envy, disappoint- 
ment and uncertainty? Part of the answer lies in the recent 
history of this joint blue-and-white collar bloc. Even after making 
allowances for the wide age span involved, the largest number 
were born in the late 1920's or early 1930's. Their life histories 
ever since have encouraged the volatile political uneasiness that is 
their trademark. 

The 1920's, for example, did not see blue-collar and lower- 
echelon white-collar workers sharing in the nation's paper- 
prosperity. Instead, the "Roaring Twenties" meant regional 
poverty, long-term unemployment, and inadequate relief for 
millions. Protective labor legislation was minimal. Women and 
children commonly substituted for working men. And employers 
used force or company unions to defeat the near-beaten trade 
unions. This interplay between the illusion of gay prosperity for 
all and the grim reality for many remains a critical key to under- 
standing the entire decade. Millions of Forgotten Men began life 
at a time when resentment, envy, disappointment, and political 
uncertainty were warranted. 

What followed has been characterized as having packed a 
"bigger wallop than anything else that happened to America 
between the Civil War and the Atomic Bomb." 7 The Great Depres- 
sion of the 1930's left 34 million Americans scarred by unemploy- 
ment; one in five workers was unemployed or underemployed, 
and lived with a "dull misery in the bones." The present day 



Government and the "Forgotten Man" 67 

Forgotten Man (or his father) entered the 1930's confident that 
his uneven luck in the previous decades would change for the 
better, and the social order would soon provide jobs. But the 
1930's were worse. With dreams shattered, skills gone rusty, and 
children undereducated and unlikely therefore to achieve much 
more than their fathers, the little man suffered much. 

Many Americans left the decade of the Great Depression im- 
pressed as never before with the built-in deficiencies of society 
(including the intricate connections that explained how a collapse 
in Wall Street speculation on paper margin could close real fac- 
tories in 48 states and sponsor the human starvation of millions). 
Many left the decade shaken by the new heights reached in class 
consciousness and class warfare (". . . there were no neutrals 
... [it was] a landscape blighted more than anything else by the 
absence of pity and mercy") . 8 Millions of men learned at the time 
to doubt their once characteristic faith in the Natural Order and 
in the Horatio Alger myth of individual success. 

In an unprecedented way the victims of the Depression slowly 
and steadily came to place their reliance on the mechanism of 
government, as they enthusiastically came to place their trust in 
the modified welfare capitalism of the New Deal. Many also 
turned to the new giant countervailing power represented by the 
AFL and CIO labor organizations. By the decade's end, however, 
recessions in the late 1930's and a stalemate in mass organizing 
union campaigns made plain a serious loss of influence and 
momentum by both Big Government and Big Labor. The little 
man of the period understandably prolonged his new flirtation 
with political demagogues (Long, Bilbo, Talmadge, and others), 
arch-conservatives (Father Coughlin, Gerold K. Smith) , vigilante 
groups (Detroit's Purple Shirts, the Knights of the White Cami- 
lia, the Klan), and political illegalities (such as factory sit-ins). 

Cleary the Forgotten Man of today was especially influenced by 
the Great Depression : "probably nobody can understand Ameri- 
ca, or hence himself, if he does not understand the Great 
Depression." 9 

The 1940's, much like the Thirties, saw the Forgotten Man 
oscillate between hope and fear, self-confidence and bitter envy, 
and early respect for, but later suspicion of government. The 
economic bonanza that war work and wartime prosperity rep- 
resented stirred new hopes that the economy was finally back 
in hand. The extraordinary production records stirred new 
pride and confidence in self, even as recognition of the con- 
tribution of government control mechanisms (price ceilings, the 
directed location of war plants in depressed areas, and the "en- 
couragement" of union efforts) led many to a new regard for 
Government's positive potential. 

In a very special way the Forgotten Man had never had it 



68 Report of the Task Force on Law and Law Enforcement 

so good, and remains even today nostalgic and envious of World 
War II days. Cost-plus contracts enabled employers to pay hand- 
somely, and accumulated War Bond savings gave millions of 
Depression alumni their first real taste of economic security and 
prosperity. The terrible plight of poor Black Americans was 
temporarily relieved by unprecedented defense work, thus re- 
lieving the conscience of White America even as the abundance 
of available jobs limited any sense of racial job competition. 
Above all, work took on the ethos of a crusade: no personal 
sacrifice was denied if it might serve "our boys over there." The 
Forgotten Man drew together with others in a way that many 
even now remember longingly. 10 

With the War's end in 1945, however, new fears spread con- 
cerning a resumption of the Great Depression. While employ- 
ment and consumption initially stayed high, earnings fell as 
employers reduced overtime. The Federal Government, despite 
warnings and controversy, lifted price and rent controls. The 
economy faltered, consumer demand sagged, and production con- 
tracted. By 1949, much as in 1939, unemployment was at its 
highest level for the decade. 

Throughout the late 1940s the Forgotten Man reacted with 
the violence characteristic of many: labor strife peaked in the 
1948-50 period, and industrial strikes set lasting records for 
duration and bitterness. Also, labor union "civil war" saw the 
CIO in 1949 and 1950 expel eleven international unions on 
grounds of communist domination. Fathers and sons fought and 
much violence accompanied new internecine "dual union" strug- 
gles. 

In a fashion never since forgotten by the Forgotten Man, the 
Federal Government exacerbated problems by responding to 
the times with a weak program. A Full-Employment Act was 
passed in 1946, but it had limited effect. The same held true 
of widely-heralded federal home-building legislation. As if a 
display of false promise and impotence were not enough, the 
Government's Taft Hartley Act in 1947 revived much of the class 
warfare rhetoric of the 1930's. 

Again, as in the early 1940's, things were set right in the 
early 1950's by the new wartime efforts. The Korean War 
initiated an economic boom that has continued with little inter- 
ruption to date. Unemployment, however, remained high through- 
out the 1950's and early 1960's, rarely dipping below 5 percent. 
Furthermore, recovery from both of the recessions in 1958 and 
1961 left the country with a higher rate of unemployment than 
had each preceeding recovery. While the employment picture has 
improved considerably, it remains nevertheless both uneven and 
unreliable (anxieties run high over the million jobs directly linked 
to the Vietnam War effort) . 



Government and the "Forgotten Man" 69 

Inflation also proceeds in its own merciless, and seemingly 
uncontrollable way. In 1967, for example, the Consumer Price 
Index recorded its second largest climb since 1951, and spendable 
earnings of workers reached their lowest level since 1964. 
Throughout 1968 and on into 1969 the Index continued the con- 
secutive monthly increases begun back in 1966. Overall paycheck 
purchasing power has shrunk regularly since 1965, the erosion of 
purchasing power becoming almost a fixed part of the American 
scene or so the Forgotten Man feels. 

This, of course, stresses only the important economic com- 
ponent of majority Man's recent history. 11 Two other factors, 
also important sources of beliefs and memories, warrant men- 
tion : political developments and social changes. 

Over the past 40 years the Forgotten Man appears to have 
been deeply influenced by four particular political developments, 
two that were appreciated, and two that were not. Especially 
well thought of are the Eisenhower years and to a lesser extent, 
the Goldwater candidacy, the first for its tone of calm and 
moderation, the second for its stand in favor of established ways 
and official pieties. He cherishes both political developments for 
their suggestion that law and order can be secured in the land, 
that many of the old ways remain best, and that America's 
moral health is redeemable. 

Relatively unpopular with the Forgotten Man are two political 
devlopments related to the Under-Class. The first encompasses 
the last fifteen years of civil rights legislation, while the second 
focuses on the past five years of anti-poverty programs. He 
feels that the anti-poverty aid goes for the most part to those 
who do not deserve it; that it demoralizes and harms; that it 
discriminates unfairly and imposes an almost unbearable tax 
on those who work ; and that it obviously does not succeed. Not 
even the recent sidetracking of the race integration effort and 
the substitution of "hunger" for "poverty" as a prime govern- 
mental concern relieves the resentment, envy, and disappoint- 
ment generated. 

The past 40 years have also witnessed a relevant set of social 
developments. Most important among these are an erosion in 
the authoritarian and partriarchal position of the male family 
head, a growing dissatisfaction by educated or "enlightened" fe- 
males with their prime confinement to housewifery and child- 
rearing, and a rebelliousness and rootlessness among both young 
males and females that seem to the Forgotten Man to go beyond 
anything he can remember or understand. It is as if, having lost 
his self-esteem and authority with his indirect failure as bread- 
winner in the 1930's, the male household head has never re- 
couped. Never-ending social change swirls around his head, 
leaving him dizzy, frightened, and not a little furious. 



70 Report of the Task Force on Law and Law Enforcement 

Looking back over forty years of history since the 1920's, then, 
one can understand more easily what shapes the beliefs and atti- 
tudes of this group of people : resentment against the betrayal 
of aspirations by the economy, the State Department, the Su- 
preme Court, and the like ; envy aimed at the Under-Class, with 
its allegedly disproportionate gains; disappointment over the 
Government's failure to take hold and give direction and worth 
to American life (e.g., to curb inflation, root out dissidents, re- 
store respect for the man of the family, etc.) ; and uncertainty 
thereby leaving the Forgotten Man the political maneuverability 
he craves (more in rhetoric than reality) to make a political 
impact on the nation that will finally have others sit up and 
take notice. 

ATTITUDES OF THE FORGOTTEN MAN: 
PERSONAL SOURCES 

Four aspects of his personal life are important for the For- 
gotten Man in his relationship with the institutions of govern- 
ment : rural origins, blue collar background, education level, and 
job satisfaction. 

With 90 percent of the population now residing in urban areas, 
and the mass media lamenting over the exodus from the land, we 
lose sight of the fact that a vast number of adult Americans either 
grew up in the countryside or are only one generation removed 
from it (whether as immigrants or as "native" Americans). 
The Forgotten Man gives evidence of particular fidelity to his 
agrarian roots : men of the land are "more traditional in religious 
beliefs, ascetic, work-oriented, puritanical, ethnocentric, isola- 
tionist, uninformed, unlikely to read books or newspapers, dis- 
trustful of people, intolerant of deviance, opposed to civil liberties, 
opposed to birth control, and favorable to early marriage and high 
fertility than all or most classes or urban workers." 12 Raised 
against such a parental and community backdrop, the Forgotten 
Man, however long he may have been an urban or suburban dwel- 
ler, may honor a backwoods fundamentalism all his life. 

With the shift of the labor force from blue-collar to service 
and white-collar occupations, a vast bloc of adult Americans 
either grew up in the homes of blue-collar workers or were 
raised by parents who had. Whether the Forgotten Man today 
is employed at white-collar or blue-collar pursuits, he may live 
under the influence of three legacies from his background. First, 
many Forgotten Men have no particular confidence in their ability 
to influence public policy. They downgrade their event- and 
law-shaping potential, and are inclined to a political apathy that 
oscillates between occasional extremist adventures. Second, For- 
gotten Men remain intensely suspicious of "outsiders"; advice 



Government and the "Forgotten Man" 71 

is respected most when it comes from other members of the 
same ethnic stock, religion, and "old neighborhood." Thus the 
Forgotten Man screens out a host of modernizing influences and 
insulates himself from change. Finally, the Forgotten Man is 
distrustful of the public rhetoric of authority. Whether it be 
the TV press conferences of officeholders or the stump speeches 
of office-seekers, the Forgotten Man declines to trust or be- 
lieve; like workers everywhere, he fears being fooled as well as 
Forgotten. 

In a nation taking pride in its steady increase in average 
education levels, a great many adult Americans nevertheless are 
either only high school graduates or dropouts. Given the im- 
portance of education in conditioning mental abilities, in shaping 
personality, and in helping to determine life chances, the For- 
gotten Man suffers frustrations over this complex and fast- 
paced life. Uncertain reasoning, depressed self-esteem, and poor 
career achievement take on new meaning in the face of his weak 
educational history. A preference for simple solutions to intricate 
problems, an impatience with exacting explanations, and a pro- 
pensity to rely more on word of mouth than the printed word 
extend this bleak view of reality. 

Unable to follow the refinements of current events, the under- 
educated often adopt black/white or self-serving explanations to 
political dilemmas: 

The less sophisticated and stable an individual, the more 
likely he is to favor a simplified and demonological view of 
politics, to fail to understand the rationale underlying the 
tolerance of those with whom he disagrees, and to find diffi- 
culty in grasping or tolerating a gradualist image of political 
change. 13 

Acceptance of the norms of democracy requires a high level of 
educational sophistication and ego security both qualities which 
the Forgotten Man lacks. 

Finally, despite the advances in work made by labor unions, 
by enlightened industrialists, and by industrial social scientists, 
a vast bloc of adult Americans enjoy few rewards from their 
work and have even fewer illusions about soon getting much 
from it. It dehumanizes anyone to work in an auto assembly 
plant putting the same four screws in the same four holes in 
one car after another every seventeen and a half seconds with 
two twelve-minute restroom breaks and a forty-five minute lunch 
break day after day after day. 

Most men at this occupational level have little intrinsic satis- 
faction; whether blue-collar or white-collar the workers are 
taxed by skill-dissolving specialization, by frequent speedups, 
and by job-eroding automation. In response, many workers adopt 



72 Report of the Task Force on Law and Law Enforcement 

elaborate 'defenses, including withdrawal (daydreams, fantasies 
of leaving to start a small business), rationalization ("work has 
no meaning for anyone"), projection ("the work force includes 
others still poorer off"), and aggression (hostility toward the 
work process, the work, and the supervisors). 

The dreary quality of the work of many men and women em- 
ployed in highly-automated industries follows from the latest 
phase of the Industrial Revolution where men have become 
servers of the machines rather than the classic first-phase situ- 
ation when machines multiplied the power and speed of the 
operator. To a large extent, the worker has become a troublesome 
auxiliary valued to the extent that he does not use initiative or 
ingenuity in his job the machine isn't programmed for bright 
ideas and to the degree that he does not, by exhibiting human 
foibles such as boredom and a sense of his own importance, inter- 
fere with the processes of a system designed around the machines 
rather than around the men. This development extends to a lesser 
degree to the crafts, where prefabrication makes high skills less 
useful, and the service industries, where the man who used to 
ferret out defects like a detective, now often simply pulls and 
replaces modular components. While the lower-echelon white- 
collar worker may be considerably better off, much clerical work 
still amounts to so much pencil-pushing and paper-shuffling. 

Also, at the occupational level at which many of the group are 
found, jobs are often unionized. On the one hand, this offers 
a form of security and protection that many rightfully seek ; but 
on the other hand, the trade union experience of many Forgotten 
Men proves a very negative one. They complain that union 
bureaucracies have grown inhuman, rigid, and unresponsive ; that 
the rank-and-file no longer shape union policies or have a real 
chance of gaining important union posts ; and that labor leaders 
overly-respond to industry demands which they find incomprehen- 
sible or indefensible, or to demands that minority group members 
get privileged consideration in jobs and apprenticeships. 14 

Feeling this way, many workers relate to their union locals 
much as to various levels of government. They casually dismiss 
any sense of personal responsibility or involvement. They rarely 
attend meetings, grudgingly pay dues, and resist dues increases 
or the creation of new taxes. They go to the election polls if the 
issues on the ballot are dramatized and if there is little personal 
inconvenience. Cynicism rationalizes the resultant state of affairs. 
They shrug off the absence in their unions of a legitimate op- 
position party, the conversion of elective posts into sinecures, 
or even occasional intimidation, as all part of the natural order 
of things. Can this attitude, asks Neil W. Chamberlain, extend 
to the broader society of which it is a part? 15 

Feeling this way as a trade unionist, the Forgotten Man also 



Government and the "Forgotten Man" 73 

gets little satisfaction from Organized Labor's political activities. 
Rather than sense renewed personal power through his member- 
ship in Labor's 16-million-member lobby, he dismisses the AFL- 
CIO's political efforts as foreign and overly-complex. Sym- 
pathetic with the rigid anti-Communist stand of AFL-CIO head 
George Meany, these men suspect the "ultra-liberal" stand the 
Labor Federation takes on domestic matters. Indifferent to 
Labor's efforts to reward and punish lawmaking "friends" and 
"enemies," the union Forgotten Man resents suggestions that 
Labor controls his vote. On occasion these men emphasize their 
independence by openly ignoring or defying Labor's political 
recommendations, and nurture instead their characteristic feel- 
ing of political aloofness, aloneness, and alienation. 

THE FORGOTTEN MAN'S CASE AGAINST GOVERNMENT 

In his "resentment," the Forgotten Man believes that his plight 
has been overlooked and that his detractors in public affairs out- 
number and overwhelm his friends. He bitterly resents that his 
losses seem to go either unnoticed or are even accepted or ap- 
plauded. 

What merits do these complaints have? On the one hand, every 
presidential candidate since Herbert Hoover recognized, valued, 
and sought the distinct support of this particular group of people. 
While the campaign styles of George Wallace, FDR, Adlai 
Stevenson, and Thomas Dewey may represent a broad spectrum, 
all four realized the concerns of the Forgotten Man. On the other 
hand, in the long stretch between campaigns the undereducated, 
unorganized, and untrusting Forgotten Man might think himself 
both out of mind and out of favor with decision-makers. Even as 
a "squeaky wheel gets the most grease," and as the mass media 
concentrate on the violent and the sensational, so does concern 
shift away from the inarticulate, unseen, and little understood 
mass of people. The Forgotten man may be right: his rather 
vague concerns do get lost between the ballot box, where he is 
supreme, and the decision-making process, where the action is. 
This nation little manages to care for many of its dying, much less 
its walking wounded. 

Less convincing is the grievance that finds a conspiracy be- 
hind every government move that disappoints. With the episodes 
of McCarthy, Lattimore, MacArthur, Coplon, Forrestal, Rosen- 
berg, and others in his mind, the Forgoten Man likes to explain 
governmental neglect in conspiratorial terms; he also thinks he 
is being victimized by the intellectuals, by the liberal "cosmopoli- 
tans," and by others who disapprove of his rigidity in sexual, 
religious, moral, patriotic, military, and political matters. Ex- 
amples of this kind of conspiracy range from unpopular OEO 



74 Report of the Task Force on Law and Law Enforcement 

subsidization of birth-control clinics to the imposition by distant 
bureaucrats of race integration guidelines for local schools and 
the encouragement the Office of Education allegedly gives to the 
development of sex education curricula. These hardly qualify as 
conspiracy. Yet while it may help his ego to think such actions 
are taken with a conscious concern to hurt him, a bitter truth 
holds that they rather are taken with unconscious indifference to 
him. 

Regarding "envy," the Forgotten Man believes both that he has 
lost power, and that he can specify who has stolen it away from 
him; but the relevant "evidence" on this issue is exceedingly 
mixed. 

On the one hand, government funds, manpower, and creative 
effort have recently helped the poor catch up and cross the 
fundamental divide that separates the Underclass from the 
Working-Class. Nevertheless, this aid would never have gone to 
the Forgotten Man in any event, but would have remained 
undeployed or have been redirected to more powerful interests. 
Furthermore, no clear evidence supports success in the effort 
to catch up: regrettably, ghetto conditions in our cities remain 
an ugly reality. The Forgotten Man widely assumes that the bold 
promises made to the Underclass (which excluded any considera- 
tion of his needs) were fulfilled. So we have the farcical situation 
of the Underclass which is angry because the pie is still in the 
sky, and the Workingclass which is envious because of the pie 
the Underclass isn't eating. 

The grievance over who has stolen his power generally re- 
duces either to a vague indictment of the blacks and their white 
liberal allies, or to a specific castigation of "spokesmen" like 
Carmichael, Brown, Cleaver, and Newton. To argue that Ameri- 
can history shows this nation's ability to sustain considerable 
overall advancement by a number of competitive class, ethnic, or 
racial groups is dismissed as irrelevant by the Forgotten Man. 
Contemporary turmoil is incorrectly seen as unique. 

Regarding "disappointment," the grievance holds that the 
institutions of government have abandoned the American Way 
and are luring the bulk of the American population away from 
fundamental Americanism. Examples include the Supreme Court 
ban on religious observances in public school, the Federal Govern- 
ment's imposition of semi-socialized medicine on the structure of 
health care (via Medicare and Medicaid legislation), the Federal 
Government's pressure on citizens to alter personal habits (such 
as smoking) , some State governments' abandonment of the death 
penalty, and local government's employment of deficit-spending 
policies. Of course, all these examples also yield to a different in- 
terpretation. 

Finally, regarding "uncertainty," the Forgotten Man grieves 



Government and the "Forgotten Man" 75 

because there is no room for him inside, and little interest paid 
to him by, the two major political parties. Where the Goldwater 
capture of the Republican Party in 1964 and the surprising 
inroads made into Democratic Party affairs in 1968 by McCarthy 
and Kennedy point up the considerable latitude for major change 
in the two dominant parties, the record of the parties in getting 
the Forgotten Man involved hardly inspires confidence. The atti- 
tude of indifference dominates ; ward leaders and block captains 
conspicuously appear before elections, only to go into hibernation 
afterwards. 

As for the nature of current political thought and trends, 
the Forgotten Man may very well think he is not taken seriously 
enough. After all, he can point out, pollsters find one-third of all 
Americans agree that the cities are unmanageable, and that 
money spent in them is wasted. Forty percent agree that air 
pollution is just about impossible to control. Fifty percent agree 
that the courts have been too lenient on criminals and thus have 
encouraged disorder. Fifty-five percent agree that something is 
deeply wrong with our society. And eighty-one percent agree 
that law and order has broken down in this country, and that it 
is time for a crackdown on civil rights protestors. 16 

Impressed with such local-level moves as the increasingly stern 
use made of police and National Guardsmen to curb rioters, the 
Forgotten American is aggrieved that others make too little of 
such matters. He strongly thinks that it remains exceedingly 
possible to return this country to his brand of fundamentalism : 
one need only to employ such conventional means as the ballot 
(defeat of open housing laws, school bond issues, fluoridation 
acts), legislation (enactment of harsh penalties for college demon- 
strators, draft resisters, and war protestors), and party politics. 

CONCLUSION 

What governmental actions might help ease the Forgotten 
Man's alienation from the institutions of government and reduce 
the potential for extremism and violence which that alienation 
often represents? The Forgotten Man does not necessarily know 
himself what will help, at least not with clarity, for research 
demonstrates the considerable confusion and self-deception that 
characterizes emotion-laden matters. 17 

One important step at the national level is the successful con- 
trol of inflation. In 1969, it is the most immediate threat to the 
Forgotten Man. He spends at least forty hours a week earning 
money for himself and his family, not counting the hours he 
may spend getting to and from his job. That money is usually 
spent in a diligently budgeted and frugal manner. Luxuries are 
few, added comforts are often expensive. The typical Forgotten 



76 Report of the Task Force on Law and Law Enforcement 

Man is continually in debt with a home mortgage, and most of his 
durable goods are purchased on long-term credit. He is, because 
of his economic dependence, the outstanding victim of the price- 
wage spiral. He feels the pinch as he makes little or no headway 
out of the tightly oppressive cycle of work-spend-work-spend 
just to keep his family fed, housed, clothed, and healthy. A small 
variation in income or prices can make the difference between 
financial hardship or relative comfort. 

Another matter on which the Forgotten Man could be better 
satisfied is taxes, which become even more painful under the 
pressures of inflation. According to outgoing Treasury Secretary 
Joseph W. Barr in his parting statement to Congress, "We face 
now the possibility of a taxpayer revolt if we do not soon make 
major reforms in our income taxes. The revolt will come not 
from the poor, but from the tens of millions of middle-class 
families and individuals with incomes of "$7,000 to $20,000 . . . 
who pay over half of our individual income taxes." He continued : 
"The middle classes are likely to revolt against income taxes, not 
because of the level or amount of the taxes they must pay but 
because certain provisions of the tax laws unfairly lighten the 
burdens of others who can afford to pay. People are concerned 
and indeed angered about the high-income recipients who pay 
little or no federal income taxes." 18 The term "revolt" may as 
yet be too strong, but embittered taxpayers are registering in- 
creasing protests over inequities such as the fact that in 1967 
there were 155 individuals and couples who reported incomes of 
more than $200,000 each and paid no federal income tax at all. 

But the federal income tax, even with the surtax, looms not as 
the worst villain in the eyes of the Forgotten Man. Rather, it is 
state and local taxes which are growing at unprecedented rates as 
the cost of goods and services shoots upward. State and local 
expenditures have been rising much more rapidly than Federal 
expenditures for domestic purposes, although the Federal govern- 
ment collects two-thirds of all the taxes whereas state and local 
governments collect only one-third. Thirty-five states have 
adopted an income tax, and many this year are raising their sales 
taxes at least one more percentage point. Property taxes have 
gone up most dramatically since they serve as the tax foundation 
for most communities. It is not unusual to see a ten to fifteen 
percent hike each year in the property assessment tax. 

Even with these increased taxes, however, the Forgotten Man 
can see few benefits. The cities, the schools, and the streets con- 
tinue to deteriorate. He sees no visible improvement in the quality 
of his living environment, and the rise in crime continues, as 
does the growth of minority discontent and the "staggering" wel- 
fare roles 19 all this combined with headline reports of tax loop- 



Government and the "Forgotten Man" 77 

holes for the rich and corruption and personal greed in high 
places. 

The public services upon which the Forgotten Man increasingly 
depends cannot be allowed to falter. Law enforcement must more 
effectively keep the Forgotten Man's neighborhood safe from the 
fear of crime in the streets and in the home, especially as that 
neighborhood opens up to Negro residents escaping from the 
racial ghetto. The public schools must more capably teach the 
Forgotten Man's children the skills they need to ascend a step or 
two up the socio-economic ladder. Health care, legal aid, and other 
welfare services must be provided not only to the very poor but 
also to families with marginal incomes who cannot pay full 
rates without real financial hardship. As the National Commis- 
sion on Urban Problems has urged, the services requirements 
of our metropolitan areas (where two-thirds of our population 
lives) must be met through the increase in federal tax receipts 
coming from the gains in national productivity, through a more 
humane reordering of national expenditures, and through re- 
forms in our system of taxation. 

But if the government is to take the necessary steps to meet the 
needs of the Forgotten Man for public services, the confidence 
of the Forgotten Man in those who run his government at all 
levels must increase. Otherwise, public support for these steps 
will not come. The degree of communication between officials 
and constituents must improve, so that government will not seem 
unconcerned about problems like crime in the streets which 
most trouble the Forgotten Man. Means must be developed for 
redressing the grievances of individuals against petty outrages by 
government bureaucracies, so that government will not seem to be 
permanently indifferent in its dealings with the Forgotten Man. 
Perhaps most importantly, dishonesty and greed among public 
servants must be prevented to the extent possible by formalized 
requirements of financial disclosure and ethical conduct, with 
appropriate enforcement mechanisms, so that government and 
its activities will not seem to serve private rather than public 
interest. 

Only if the Forgotten Man's alienation and disaffection from 
his government are reduced, if not eliminated, will it be possible 
for America's leaders to initiate the increased commitment of 
needed resources to the public sector. Increasingly, the quality 
of life for each of us depends upon its quality for all of us. 

REFERENCES 

1 "... the brooding and uncomplicated mind, with proper encouragement, 
might detect subversion not only behind the UN and the TVA, but also the 
French and Indian War, the Pure Food and Drug Act, compulsory vaccina- 
tion for smallpox, the abolition of entail and primogeniture, the bank holi- 



78 Report of the Task Force on Law and Law Enforcement 

day of 1933, the British Reform Act, Red Cross blood banks, the Congress of 
Vienna, the election of Grover Cleveland, Teapot Dome, and public venereal 
clinics." Willie Morris, "Cell 772, or Life Among the Extremists," Commen- 
tary, October 1964, at 38. See also Seymour Martin Lipset, "An Anatomy 
of the Klan," Commentary, October 1965, at 74-84. 

2 For discussion, see James Q. Wilson, "A Guide to Reagan Country, The 
Political Culture of Southern California," Commentary, May 1967, at 37-45. 
See also Pete Hamill, "The Revolt of the White Lower Middle Class," New 
York, Apr. 14, 1967, at 24-29; Edward Schnerer, "The Scar of Wallace," 
Nation, Nov. 4, 1968, at 454-457. HamilPs essay is one of the finest on the 
subject available anywhere. 

3 For relevant conceptual refinement, see Marvin E. Olsen, "Two Cate- 
gories of Political Alienation," Social Forces, March 1969, at 288-298. For 
historical background, see Irene Taviss, "Changes in the Form of Alienation : 
The 1900's vs. The 1950's," American Sociological Review, February 1969, 
at 46-57; John H. Bunzel, Anti-Politics in America (New York: Knopf, 
1967). 

4 Quotations are from Morris, supra note 1 at 38. Harry Jones, Jr., The 
Minutemen (New York: Doubleday, 1968); C. Wright Mills, White Collar: 
The American Middle Classes (New York: Oxford University Press, 1951); 
Richard H. Rovere, "The Conservative Mindlessness," Commentary, March 
1965, at 38-42. 

5 In connection with both the Under-actors and the Under-believers, see 
Arthur B. Shostak, "Chapter Fourteen: Blue Collar Politics" in Blue-Collar 
Life (New York: Random House, 1969). See also Herbert Gans, The Urban 
Villagers: Group and Class in the Life of Italian-Americans (New York: 
Free Press of Glencoe, 1962). 

6 See, for example, Irving Bernstein, The Lean Years : A History of the 
American Worker, 1920-1933 (Boston: Houghton-Mifflin, 1960). 

7 Caroline Bird, The Invisible Scar (New York: McKay, 1966), at 17. See 
also David A. Shannon, ed., The Great Depression (Englewood Cliffs, N.J.: 
Prentice-Hall, 1960); Malcomb Cowley, Think Back On Us (Carbondale, 111.: 
Southern Illinois University Press, 1967). 

8 Murray Kempton, Part of Our Time : Some Monuments and Ruins of the 
Thirties (New York: Dell, 1967) at 1, 10. 

9 David Cort, New York Times Book Review, March 24, 1968, at 38. 
See also Milton Derber and Edwin Young, eds., Labor and the New Deal 
(Madison, Wis.: University of Wisconsin Press, 1961). 

10 See Adolph A. Hoehling, Home Front, USA : The Story of World War II 
Over Here (New York: Crowell, 1966) ; Milton Derber, "Labor Management 
in World War II," Current History Magazine June, 1965, at 340-341; "Fit- 
ter's Night" in Arthur Miller's / Don't Need You Any More (New York: 
Viking, 1967). 

11 This section draws heavily on Shostak, "Chapter Two : Blue Collar 
Odyssey," supra note 5. See also David Danzig, "Conservatism After Gold- 
water," Commentary, March, 1965, at 31-37. 

12 Norval D. Glenn and Jon P. Alston, "Rural-Urban Differences in Re- 
ported Attitudes and Behavior," The Southwestern Social Science Quarterly, 
March, 1967, at 381-400. 

13 Seymour Martin Lipset, "Democracy and Workingclass Authoritarian- 
ism," American Sociological Review, August 1959, at 492. 

14 See, for example, Sidney M. Peck, The Rank-and-File Leader (New 
Haven: College and University Press, 1963); Paul Sultan. The Disenchanted 
Unionist (New York: Harper & Row, 1963). 

is Neil W. Chamberlin, The Labor Sector (New York: McGraw-Hill, 1967), 
at 207. 



Government and the "Forgotten Man" 79 

16 From 1968 and 1969 polls provided by the Harris polling organization, 
as published in major city newspapers. 

I? For the clearest and most compelling statement of the case, see Snell and 
Gail J. Putney, Normal Neurosis: The Adjusted American (New York: 
Harper & Row, 1964). See especially their discussion of "misdirection," or 
"behavior motivated by a need, but inappropriate to the satisfaction of that 
need," at 14-15. Also useful is Robert Endleman, "Moral Perspectives of 
Blue-Collar Workers," in Arthur Shostak and William Gomberg, eds., Blue- 
Collar World: Studies of the American Worker (Englewood Cliffs, N.J.: 
Prentice-Hall, 1964), at 308-315. 

is U.S., Congress, Joint Economics Committee, 1969 Economic Report of 
the President, Hearings, prepared statement of Secretary of the Treasury, 
Joseph W. Barr, 91st Cong., 1st sess., Jan. 17, 1969, at 46. 

19 The Forgotten Man has not been told that of the 8.4 million people on 
welfare in the United States, less than 80,000 are employable adult men. 
See National Commission on Urban Problems, Building the American City 
(Washington, B.C.: Government Printing Office, 1968), at 3. 



CHAPTER 5 

AMERICAN SOCIETY AND THE 
RADICAL BLACK MILTANT* 



The Report of the Kerner Commission, published in March of 
1968, concerned itself primarily with the phenomenon of urban 
rioting and with the appropriate responses of society to that 
phenomenon. Recent developments in our racially troubled na- 
tion make it necessary to consider how our political and social 
institutions should respond to a different but related phenome- 
non: the small but increasing number of "radical black mili- 
tants" who actively espouse and sometimes practice illegal 
retaliatory violence and even guerrilla warfare tactics against 
existing social institutions, particularly the police and the 
schools. 

This new kind of purposeful violence is potentially even more 
destructive than the urban riots have been. We as a nation must 
take effective steps to stop the spread of radical black militancy, 
and we shall be effective only if we as a nation understand what 
it is we are dealing with. This chapter is intended to contribute 
to public understanding by tracing the multiple causes of radi- 
cal black militancy and by outlining the principles which should 
govern the response of our nation's institutions to this threat. 

THE NATURE OF RADICAL BLACK MILITANCY 

In the effort to achieve freedom, equality and dignity, Negroes 
in America have repeatedly engaged in militant action and have 
continuously experimented with a wide variety of tactics, ideolo- 
gies, and goals: insurrection and riot, passive resistance and 
non-violence, legal action and political organization, separatism 
and integration all these and many others have been tried by 



* This chapter was prepared by James S. Campbell largely as a synthesis 
of material contained in the Reports of this Commission's Task Forces on 
Historical and Comparative Perspectives on Violence and on Violent Aspects 
of Protest and Confrontation, as well as on the basis of the Report of the 
National Advisory Commission on Civil Disorders. For a fuller description 
of sources, see the Note following this chapter. 

81 



82 Report of the Task Force on Law and Law Enforcement 

black people in every period of our history. Black protest in 
America today is a similarly complex phenomenon. Many black 
leaders are working quietly but effectively "within the system" 
toward the same basic goals black well-being and dignity as 
those who have adopted more militant tactics. Even that part 
of the larger black protest movement which is now called "black 
militancy" is a complex, many-dimensioned phenomenon, and 
violence is only one part of it. 

Three major themes stand out in contemporary black mili- 
tancy : 

(1) Cultural autonomy and the rejection of white cul- 
tural values ; 

(2) Political autonomy and community control ; and 

(3) "Self -defense" and the rejection of non-violence. 

Each of these three themes is a cluster of ideas, values and activ- 
ities which are shared in widely varying degrees and combina- 
tions by different groups and individuals. Those whom we call 
"radical black militants," and who are the main focus of this 
chapter, are Negroes who embrace notions of "self-defense" 
which include illegal retaliatory violence and guerrilla warfare 
tactics. 

(1) Cultural autonomy. The movement toward black cultural 
autonomy and rejection of white cultural values mixes both 
indigenous and international influences. Looking backward at 
the long history of white domination in this country, and out- 
ward at what is seen as contemporary American "neocolonialism," 
black militants increasingly question the traditional values of 
American culture. From the Negro perspective, the performance 
of this country under the dominance of Western cultural values 
must seem far less impressive than it looks in white perspective, 
and militant blacks are now looking to their own cultural heri- 
tage as a source of affirmation of a different set of values. 

Supported by the revival of awareness of African history and 
culture, militant blacks have grown more and more impatient 
with what is seen as the attempt of American institutions such 
as the universities, the schools and the mass media to impose 
white cultural standards which ignore or deprecate the inde- 
pendent cultural heritage of Afro-Americans. A SNCC position 
paper proclaims : 

The systematic destruction of our links to Africa, the 
cultural cut-off of blacks in this country from blacks in 
Africa are not situations that conscious black people in this 
country are willing to accept. Nor are conscious black peo- 
ple in this country willing to accept an educational system 
that teaches all aspects of Western Civilization and dismisses 



American Society and the Radical Black Militant 83 

our Afro-American contribution . . . and deals with Africa 
not at all. Black people are not willing to align themselves 
with a Western culture that daily emasculates our beauty, 
our pride and our manhood. 

(2) Political autonomy. Contemporary black militancy is 
oriented strongly to the idea of black community control and 
the development of independent black political bases. The effort 
of the militants to overcome black powerlessness, while at the 
same time largely rejecting participation in traditional politi- 
cal avenues and party organizations, is a result of several in- 
fluences. 

Perhaps most important has been the failure of traditional 
politics to afford an effective means by which black leaders 
can exercise power on behalf of their constituencies. A recent 
study of Chicago politics, for example, showed that of a total 
of 1,088 policy-making positions in federal, state and local 
government in Cook County, only 58, or 5 percent, were held by 
Negroes in 1965, although blacks comprised at least 20 percent 
of the county's population. Nationwide, the number of black 
elected officials is estimated at less than 0.02 percent of the 
total of 520,000 elected officials despite the fact that blacks are 
just under 12 percent of the population. ("Traditional politics" 
may yet prove responsive to black leadership aspirations, how- 
ever : in 1965 when the Voting Rights Act went into effect there 
were but 72 black elected officials in the 11 Southern states; 
after the 1968 elections that number had increased more than 
fivefold to 388.) 

Another major factor influencing the militants' thrust for black 
political autonomy is the fact that residential segregation has 
created the conditions for effective black political organization. 
Residential segregation has meant that, in the black belt of the 
South as well as in the urban North and West, blacks occupy 
whole districts en bloc. With the growing concentration of 
blacks in the central cities and of whites in the suburbs, more 
and more cities are developing black majorities: in the next 15 
years the number of major cities with Negro majorities will 
rise from 3 to 13. 

A third factor in the drive toward black community control 
is the sharpened political perception that control over the cen- 
ters of decision-making means control over the things about 
which decisions are made, such as housing, employment, and 
education, as well as other focal points of black protest like 
the police and the welfare apparatus. Black power theorists like 
Stokely Carmichael and Charles Hamilton believe that such con- 
trol can be achieved only through independent black political 
organizations : 



84 Report of the Task Force on Law and Law Enforcement 

Before a group can enter the open society, it must first 
close ranks. By this we mean that group solidarity is nec- 
essary before a group can operate effectively from a bar- 
gaining position of strength in a pluralistic society. Tradi- 
tionally, each new ethnic group in this society has found 
the route to social and political viability through the orga- 
nization of its own institutions with which to represent its 
needs within the larger society. 

(3) "Self-defense." The civil rights movement of the 1950's 
and early 1960's stressed non-violence and what some called 
"passive resistance." But civil rights workers in the South some- 
times found that they could not depend upon local or even 
federal officials for protection against violent attacks by the 
Ku Klux Klan and other white terrorist groups. Local police and 
sheriffs were often only half-heartedly concerned with the wel- 
fare of rights workers, and in a few instances at least were 
even active participants in terrorist groups. As a result, in the 
mid-1960's a number of civil rights activists and their local 
allies began to arm themselves, and local defense groups sprang 
up in several black communities in the South. 

At this time the focus of black protest began to shift to the 
ghettoes of the North, and expanded notions of self-defense soon 
arose. After the Watts riot of 1965, local Negroes formed a 
Community Action Patrol to monitor police conduct during ar- 
rests. (A UCLA survey showed that three fourths of the Negro 
males in the Watts area believed that the police used unneces- 
sary force in making arrests.) In 1966, a small group of Oakland 
blacks carried the process a step further by instituting armed 
patrols. From a small group organized on an ad hoc basis and 
oriented to the single issue of police control, the Black Panther 
Party for Self -Defense has since grown into a national organiza- 
tion with a ten-point program for achieving political, social and 
economic goals and with an evident willingness to resort to vio- 
lence when it appears that only force and coercion will be suc- 
cessful in attaining the Party's goals. 

The confrontation between radical black militants and some 
elements of the police has escalated far beyond self-defense 
and has in some cases become a bloody feud verging on open 
warfare. Aggressive attacks by black radicals on the police 
obviously far exceed any lawful right of self-defense (just as 
some of the instances of police aggression against black radi- 
cals are clearly unlawful), but the radicals nonetheless believe 
their attacks to be legitimate and to fall within "self-defense" 
when that concept is properly understood. As a militant leader 
argues, "We have been assaulted by our environment." This 
"assault" is considered to neutralize moral restraints against 



American Society and the Radical Black Militant 85 

the use of counter-violence, which is thus seen by the radicals 
not as aggression but still as "defensive" retaliation. 

How easily violence against police and other symbols of au- 
thority can be perceived as legitimate by radical black mili- 
tants was demonstrated in the thoughts expressed before the 
Violence Commission by a moderate Negro leader : 

For you see, Mr. Chairman, what most people refer to as 
violence in the ghetto, I refer to as self defense against the 
violence perpetrated on the ghetto. Dr. King's widow has 
put it well: "In this society," she said on Solidarity Day, 
"violence against poor people and minority groups is 
routine." 

I must remind you that starving a child is violence. Sup- 
pressing a culture is violence. Neglecting school children 
is violence. Punishing a mother and her child is violence. 
Discriminating against a working man is violence. Con- 
tempt for poverty is violence. Even the lack of will power 
to help humanity is a sick and sinister form of violence. 

The people of the ghetto, Mr. Chairman, react to this vio- 
lence in self defense. Their self defense is becoming more 
violent because the aggressor is becoming more violent. 

How has it come about that substantial numbers of black 
people in this country, especially among the black youth, see 
the government and the white majority as an "aggressor"? 

UNDERLYING CAUSES OF RADICAL BLACK MILITANCY 

In March of 1968 the Kerner Commission filed its historic Re- 
port at the end of a comprehensive investigation into the causes 
and prevention of the urban riots which have plagued this 
country in the 1960's. The Commission found that the causes 
of the rioting were "imbedded in a massive tangle of issues and 
circumstances social, economic, political, and psychological 
which arise out of the historical pattern of Negro-white rela- 
tions in America." The most fundamental strand in that tangle, 
said the Commission, is "the racial attitude and behavior of 
white Americans toward black Americans." 

White racial attitudes, the Commission found, are essentially 
responsible for the "explosive mixture" in our cities that has 
recently erupted into large-scale rioting. Three main ingredients 
of the mixture were identified : 

(1) Great numbers of Negroes have been excluded from 
the benefits of economic progress through discrimination 
in employment and education and their enforced confine- 
ment in segregated housing and schools. 



86 Report of the Task Force on Law and Law Enforcement 

(2) The massive and growing concentration of impov- 
erished Negroes in our major urban areas has greatly in- 
creased the burden on the already depleted resources of the 
cities and created a growing crisis of deteriorating facili- 
ties and services and unmet human needs. 

(3) In the teeming racial ghettos, segregation and pov- 
erty have intersected to destroy opportunity and hope, to 
enforce failure, and to create bitterness and resentment 
against society in general and white society in particular. 

The Commission found that other factors catalyzed the mixture, 
factors such as the frustrated hopes aroused by the successes 
of the civil rights movement; the climate of encouragement of 
violence arising out of white terrorism and violent black protest 
and rhetoric; and the frustrations of black political powerless- 
ness and alienation from institutions of government and law. 
Thus catalyzed, relatively minor racial incidents frequently 
involving the police are sufficient to spark the mixture into an 
explosion of violence. 

The Kerner Commission's analysis of the causes of urban 
riots is largely applicable to the phenomenon of radical black 
militancy. Radical black militancy, like the urban riots, is ulti- 
mately a response to conditions created by racial attitudes and 
behavior that have widely prevailed among the white majority 
since the days of slavery. 

The reaction of many white Americans to the Kerner Commis- 
sion Report, however, was to deny angrily that they were "rac- 
ists," to point to friendships with individual Negroes, and ask if 
the Commission thought that it was "white racists" who were 
doing all the rioting. This response misconceives both the basic 
thrust of the Kerner Commission Report and the true nature of 
"white racism." That rather incendiary phrase should be un- 
derstood as no more than a short-hand designation for a com- 
plex social condition, an enduring institutional and ideological 
legacy of white supremacy and Negro subordination, whose 
source is to be found only in the whole tragic history of race 
relations in this country. If we are to understand "white racism," 
we must understand this history in its three major phases 
slavery, segregation and the ghetto. 

(1) The institution of slavery. Slavery was established in 
the New World almost immediately after its discovery by the 
nations of Europe. For the blacks who were subjected to slavery, 
the existing social systems of West Africa were interrupted, 
and new, traumatic ones were imposed. Tribal institutions and 
customs which prepared blacks to meet their needs and cope 
as adults in African societies were no longer useful or possible. 
A new kind of socialization was necessary in order to develop 



American Society and the Radical Black Militant 87 

not an adequate, competent participant in adult society but 
rather a subhuman, dependent creature fully subservient to the 
master's needs. 

Children born into the slave system were prepared from 
birth for a life of subservience. Nurture and physical care came 
from an adult not in the interest of a family, kinship group 
or tribe but in the interest of the master. Children were not 
destined to become elders, chiefs, warriors, or traders and to 
hold positions of respect and status within the tribe. Instead 
they were to become slaves, and the processes of their individ- 
ual development were distorted by this unnatural end. Probably 
this is the reason why so many adult slaves cared so little 
for children a fact which confounded slave owners and ob- 
servers. 

The adult slave was without power and without security. His 
legal status was that of a piece of property, without rights in 
court and without the protection of any institution. Completely 
subject to their masters' control, dispersed throughout a larger 
white culture, and unable to maintain the institutions of their 
previous societies (kinship ties, family organization, religion, 
government, courts, etc.), slaves were generally unable to run 
away en masse, to organize effective large-scale attacks against 
their oppressors, or even to turn inward on their own culture 
for psychological support. 

Some slaves were able to run away to the Indians, to Canada 
or to "freedom" in the North. Most could not, however, but had 
instead to find ways of adjusting to the slavery environment. 
Some led a passive-aggressive existence in relationship to the 
white master working as little as they could without being 
punished, feigning illness, sabotaging property and generally 
provoking the master. Some participated in the small, relatively 
unorganized insurrections that occurred occasionally during the 
slavery years. Others internalized their aggressions and en- 
gaged in self-destructive behavior and in violent acts against 
other blacks. Some found in Christianity a relationship to God 
and a place in a spiritual kingdom that enabled them to endure 
the sufferings of their life in this world. Still others adopted 
a life style which tried to copy, to the extent possible, the style 
of the white master. Common to all these adaptations, and 
shaping the form they took, was the overriding fact of the 
slave system. 

The impact of slavery on white society was no less profound. 
Because of their profound belief that "all men are created 
equal" and that life, liberty and the pursuit of happiness are 
among man's "inalienable rights," whites could not rationalize 
the slave system simply on the basis of the economic need for 



88 Report of the Task Force on Law and Law Enforcement 

manpower. If slavery was to be justified, it was necessary to 
believe that the Negro was inherently inferior, that he belonged 
to a lower order of man, that slavery was right on scientific and 
social, as well as economic, grounds. A large body of literature 
came into existence to prove these beliefs and the corollary 
belief in the natural superiority and supremacy of the white 
race. The ideology of white superiority and black inferiority 
was reinforced both by the destructive impact of slavery upon 
Negroes generally and by the institutional and cultural denial 
of individual Negro accomplishments in the face of overwhelm- 
ing obstacles. For more than two centuries the institution of 
slavery studiously wove the strand of racism deep into the 
fabric of American life. 

It is thus not surprising that the conditions of life in the 
United States were hardly better for free Negroes than for 
slaves. Some free Negroes achieved material success, a few even 
owned slaves themselves or had white indentured servants, but 
the vast majority knew only poverty and rejection by white 
society. Forbidden to settle in some areas, segregated in others, 
they were targets of prejudice and discrimination. In the South, 
they were denied freedom of movement, severely restricted in 
their choice of occupation, forbidden to associate with whites 
or with slaves, and in constant fear of being enslaved. In both 
North and South they were regularly the victims of mobs. In 
1829, for example, white residents invaded Cincinnati's "Little 
Africa," killed Negroes, burned their property, and ultimately- 
drove half the black population from the city. 

(2) Segreaation in the aftermath of slavery. The violence 
of the Civil War tore the nation apart and succeeded in destroy- 
ing the institution of slavery long after France (1794) and 
England (1833) had abolished it in their overseas possessions 
in the New World. But the War proved incapable of rooting out 
the deeper structure of racism upon which slavery rested: that 
had been built up over too long a time and was too firmly em- 
bedded in American society, North as well as South. Indeed, as 
we have said, racism had become an integral part of the black 
man's experience in America : the large number of Negroes who 
could not or would not leave the plantation after slavery indi- 
cates the degree to which blacks had been absorbed into the 
master-slave relationship. 

After the war, blacks were quickly, and often violently, closed 
out of the economic, political, and educational mainstream of 
American life. The program of Radical Congressional Recon- 
struction failed, for a variety of reasons, to provide blacks 
with a solid economic, political or social base and consequently 
failed as an adjustment tool. None of the organizational struc- 



American Society and the Radical Black Militant 89 

tures of the African culture remained to provide a basis for 
group stability and direction. Only remnants of previous Afri- 
can life-styles remained, greatly modified by the American expe- 
rience and of little value in promoting adjustment in the 
post-slavery period. As a result of factors such as these, Negroes 
remained economically, socially and psychologically dependent 
on whites who retained almost complete control. 

In some respects the condition of the Negro worsened after 
the war. Under the segregation system which rapidly developed 
(and which was ratified by a series of Supreme Court decisions 
culminating in the "separate but equal" doctrine embraced by 
the Court in 1896), control and authority over blacks were 
extended to all whites, most of whom were economically vul- 
nerable and more in need of a psychological scapegoat than the 
wealthier slave-owning class. Whites outside the planter caste 
were more likely to act in an unjust, violent fashion toward 
blacks. 

The first Ku Klux Klan, arising in 1865 and lasting until 
1876, was a principal means of keeping the Negro in his place 
in the early postwar period. The Klan helped overthrow the 
Reconstruction governments of North Carolina, Tennessee, and 
Georgia, and was responsible, according to the findings of a 
Congressional investigation in 1871, for hangings, shootings, 
whippings, and mutilations numbering in the thousands. The 
commanding general of federal troops in Texas reported : "Mur- 
ders of Negroes are so common as to render it impossible to 
keep accurate accounts of them." By 1877, when white govern- 
ments had returned to power in all the Southern states, and 
Reconstruction had been abandoned, the Klan and its allies in 
the South had been so successful that the Negro was effectively 
eliminated from the political life of the South. 

Still denied the opportunity for personal achievement and 
the resultant sense of adequacy and security which achieve- 
ment brings, blacks made various adaptations to meet adequacy 
and security needs in a society in which they were now "free" 
but still rejected and abused. Religion was embraced more 
firmly. Many informal and formal Afro-American mutual sup- 
port organizations developed after slavery, reflecting the need 
for black sharing and mutual support in a hostile society. Some 
blacks continued as employees of their former masters and in 
many cases identified strongly with whites. Some wandered 
about, disorganized and hopeless. 

Under the segregation system's omnipresent threat of vio- 
lence, black parents had to teach their children to avoid ag- 
gressive life-styles which might lead to disastrous conflicts 
with whites. Such socialization, similar to that under slavery, 



90 Report of the Task Force on Law and Law Enforcement 

naturally led to the diminution or destruction of the capacity 
for exploration, learning and work in many Negroes. Inade- 
quately socialized, many blacks were largely pleasure-oriented, 
responding to inadequately controlled sexual and aggressive 
drives by behavior that often resulted in violence and in con- 
flict with the larger society. Such behavior was not viewed by 
whites as the natural product of a society which had failed 
to create the conditions for adequate social and psychological 
development among many blacks instead it was viewed simply 
as "the way niggers are." 

(3) The rise of the urban ghetto. In 1910, 91 percent of 
the country's 9.8 million Negroes still lived in the South. During 
World War I large-scale movement of Negroes out of the rural 
South was stimulated when the industrial demands of the war 
created new jobs for unskilled workers in the North, while 
floods and boll weevils hurt farming in the South. The Depression 
temporarily slowed this migratory flow, but World War II set it 
in motion again. The migration proceeded along three major 
routes: north along the Atlantic Seaboard toward Washington, 
Baltimore, Philadelphia, New York, Boston; north from the 
Mississippi to St. Louis, Chicago, Detroit, Milwaukee ; west from 
Texas and Louisiana toward Los Angeles and San Francisco. 
While the total Negro population more than doubled from 1910 to 
1966 (from 9.8 million to 21.5 million), the number living out- 
side the South rose elevenfold (from 0.9 million to 9.7 million) 
and the number living in cities rose more than fivefold (from 
2.7 million to 14.8 million). 

The early pattern of Negro settlement within the Northern 
cities followed that of other immigrants; they converged on the 
older sections of the central-city because the lowest-cost hous- 
ing was located there, because friends and relatives were likely 
to be living there, and because the older neighborhoods then 
often had good public transportation. Unlike other immigrants, 
however, the Negro remained and remains today largely con- 
fined in the original ghetto still the prisoner of the American 
racial heritage. 

In the light of our whole racial history, should we be sur- 
prised that, for the Negro, the great cities of the North have 
not been ports of entry into the mainstream of American life? 
Can we fail to see that the black ghetto is ultimately the product 
of slavery and segregation, that it is but the third great phase 
of the black man's bondage in America ? The Report of the Ker- 
ner Commission has exhaustively described the conditions of the 
black ghetto and the manner of its formation. For our purposes 
we need only to illustrate a few of the many continuities which 



American Society and the Radical Black Militant 91 

exist between life in the ghetto and the black experience under 
slavery-segregation. 

Race riots and violent racial conflict were a hall- 
mark of the early-20th century Negro experience in north- 
ern cities, the Negroes invariably suffering most of the 
violence. In East St. Louis, 111., a riot which claimed the 
lives of 39 Negroes and 9 whites erupted in 1917 against 
a background of fear by white workingmen that Negro 
labor was threatening their jobs. Other major riots by 
whites against blacks took place in 1917 in Chester, Pa., 
and Philadelphia. In 1919 there were riots in Washington 
(B.C.), Omaha, Charleston, Longview (Tex.), Knoxville, and 
Chicago. In Chicago between July 1917 and March 1921, 58 
Negro houses were bombed, and recreational and residen- 
tial areas were frequent sites of violent racial conflict. Ne- 
gro soldiers returning home from service in World War I 
in segregated combat units were mobbed for attempting 
to use facilities open to white soldiers. 

Many Negro families in the ghettos attained incomes, 
living standards and cultural levels matching those of 
whites who upgraded themselves out of ethnic neighbor- 
hoods, but they still remained in predominantly black 
neighborhoods because they were effectively excluded from 
white residential areas. Able to escape poverty, they were 
unable to escape the ghetto and their confinement ren- 
dered their accomplishments less visible to the larger soci- 
ety which continued to embrace the old myth of innate 
Negro inferiority. More often, however, the pervasive dis- 
crimination in employment, education and housing ren- 
dered the escape from poverty even within the ghetto all 
but impossible. 

Many ghetto blacks responded to their condition of 
oppression with self-hatred and low self-esteem. These 
traits in turn gave rise to passive, self -destructive modes 
of behavior such as excessive use of alcohol and narcotics, 
violent assault on a friend over a dime or a bottle of wine, 
poor impulse control generally, low aspiration levels, and 
high rates of family conflict. Such patterns of behavior are 
reflected in the far higher Negro arrest rates for violent 
crime: urban arrest rates of Negroes for robbery are 16 
times higher than white rates and for homicide they are 
17 times higher. 

Another highly destructive pattern begun under slavery 
continued under conditions of unemployment in the urban 
ghetto: the Negro male often played only a marginal role 
in his family and found few cultural or psychological re- 



92 Report of the Task Force on Law and Law Enforcement 

wards in family life. Often the Negro father abandoned 
his home because he felt useless to his family, the absence of 
the father then condemning the sons to repeat the pattern. 
Today only three-fifths of all Negro children in central cities 
live with both parents, and in families with incomes under 
$4000 only one quarter of the Negro children live with both 
parents. 

DIRECT CAUSES OF RADICAL BLACK MILITANCY 

To say that an enduring structure of white racial attitudes 
and behavior is ultimately responsible for the phenomenon of 
radical black militancy is onlv to identify a first cause, an un- 
derlying matrix. We must also look to more direct causes in 
order to understand why radical black militancy has emerged 
at this particular point in our history. Four different kinds of 
direct causes can be identified, each inextricably interwoven 
with all the others and with the underlying social matrix cre- 
ated by slavery, segregation and the ghetto : 

(1) the political cause: the frustrations of the civil 
rights movement ; 

(2) the ideological cause: the rise of an "anti-colonial" 
dogma ; 

(3) the economic cause: the widening gap between white 
and black material advancement ; 

(4) the psychological cause: the breaking of the Negro- 
white "dependency bond." 

(1) The political cause. From the decline of Marcus Gar- 
vey's separatist philosophy in the 1920's until quite recently, 
the dominant thrust of black protest was toward political, so- 
cial, economic and cultural inclusion into American institutions 
on a basis of full equality. Always a powerful theme in Amer- 
ican black militancy, these aims found their maximum expres- 
sion in the civil rights movement of the 1950's and early 1960's. 

For the civil rights movement, the years before 1955 were 
filled largely with efforts at legal reform, with the NAACP, 
especially, carrying case after case to successful litigation in 
the federal courts. There was a considerable gap, however, be- 
tween the belief of the NAACP and other groups that major 
political changes were in sight and the reality of the slow pace 
of change even in the more advanced areas of the South. The 
gap was even greater between the conservative tactics and 
middle-class orientation of the established civil-rights organi- 
zations and the situation of the black ghetto masses in the 
North. 



American Society and the Radical Black Militant 93 

Since the NAACP, the Urban League, and other established 
groups continued to operate as before, new tactics and new 
leaders arose to fill these gaps. In 1955, Mrs. Rosa Parks of 
Montgomery, Ala., refused to give up her bus seat to a white 
man, and a successful boycott of the bus system materialized, 
led by a local minister, the Reverend Martin Luther King, Jr. 
Around the same time, with less publicity, another kind of or- 
ganization with another kind of leadership was swiftly coming 
into its own in the northern ghettos: Elijah Muhammed and the 
Nation of Islam represented those segments of the black com- 
munity that no one else, at the moment, seemed to be repre- 
senting the northern, urban, lower classes. It was this strange 
sect which would produce the man who was destined to rise 
from a petty criminal to a "black shining prince" and who 
would far overshadow Dr. King in influence among the new 
generation of black militants : Malcolm X. 

Neither the direct-action, assimilationist approach of King 
nor the separatist, nationalist approach of the Black Muslims 
were new. Rather, they were both traditional strategies of 
black protest which had been adopted in the past in response 
to specific situations. Direct action was used by the abolitionists 
prior to the Civil War, by left-wing organizers in the crhetto in 
the 1930's, and by CORE in the early 1940's. It had been 
threatened by A. Phillip Randolph in his march on Washington 
in 1941, but called off when President Roosevelt agreed to estab- 
list a Federal Fair Employment Practices Commission. The roots 
of black separatism are equally deep, reaching back beyond 
Marcus Garvey in the 1920's to Martin Delaney, a Harvard-edu- 
cated Negro physician and novelist who in the 1850's promoted 
the migration of American Negroes to Africa, as philanthropist 
and ship-owner Paul Cuffee had some forty years earlier. 

The move to direct action in the south brought civil rights 
protest out of the courts and into the streets, bus terminals, 
restaurants, and voting booths. Nevertheless, it remained 
deeply linked to the American political process and represented 
an abiding faith in the power of the federal government and 
in the moral capacity of white Americans, both northern and 
southern. It operated, for the most part, on the implicit premise 
that racism was a localized, essentially southern malignancy 
within a relatively healthy political and social order; it was a 
move to force American morality and American institutions to 
cure the last symptoms of the diseased member of the body 
politic. 

Activists in SNCC, CORE and other civil rights organizations 
met with greater and more violent resistance as direct-action 
continued during the sixties. Freedom Riders were beaten by 



94 Report of the Task Force on Law and Law Enforcement 

mobs in Montgomery; demonstrators were hosed, clubbed and 
cattle-prodded in Birmingham and Selma. In many parts of 
the South, civil rights workers, black and white, were victim- 
ized by local officials as well as by night-riders and angry 
crowds. At the same time, the problems of white violence were 
compounded by the intransigence of some southern courts and 
juries, and by political constraints on the federal government 
that prevented it from moving decisively toward a radical alter- 
ation of the situation faced by the civil rights activists. Deeply 
affecting the whole struggle were the continuing unlawful re- 
sistance to integration by some southern governors such as 
Faubus, Barnett and Wallace, and the relentless political pres- 
sure applied by powerful segregationists such as Senator East- 
land. 

The Mississippi Freedom Summer of 1964 was a hybrid phe- 
nomenon, less of a moral confrontation than Birmingham the 
year before, and more of a new kind of power play. Its sponsor 
was "COFO," the Council of Federated Organizations, a loose 
ad hoc consortium funded by established groups such as the 
NAACP, CORE, SCLC, and the National Council of Churches, 
but given its cutting edge by the leaders of SNCC. Master- 
minded by a SNCC staff disillusioned by white reprisals and 
violence against earlier voter registration drives, the COFO 
Project was presented as a massive effort to get voter registra- 
tion off the ground with the aid of large numbers of vacation- 
ing white college students. But COFO's voter registration p-oal 
turned out to be a cover for a more ambitious and aggressive 
SNCC strategy: to provoke massive federal intervention in 
Mississippi amounting to an occupation and a "second effort 
at Reconstruction." 

The Mississippi summer was an extraordinary one for many 
of the more than 2,000 participants from all over the United 
States. Three young men were murdered by a white conspiracy, 
and many others saw at firsthand the ugly face of racial re- 
pression. The project culminated, not with a second Reconstruc- 
tion, but with the Mississippi Freedom Democratic Party's fail- 
ure to get its delegation seated at the 1964 Democratic national 
convention (although two at-large seats were offered and spe- 
cial efforts were promised to open state parties to Negroes 
during the next four years). This symbolic, highly emotional 
defeat climaxed a growing disillusionment with "white liber- 
als" among young blacks, and perhaps more than any other 
single event destroyed the faith of civil rights activists in the 
ability of "the system" to purge itself of racism. 

By the middle of the decade, then, many militant Negro 
members of SNCC and CORE began to turn away from Ameri- 



American Society and the Radical Black Militant 95 

can society and the "middle-class way of life." Despite the 
passage of the Civil Rights Act of 1964 and the Voting Rights 
Act of 1965, they became deeply cynical about the tradition 
of American liberal reform. They talked more and more of "revo- 
lutionary" changes in the social structure, and of retaliatory 
violence, and they increasingly rejected white assistance. The 
new militants insisted that Negro power alone could compel 
the white "ruling class" to make concessions. Yet, at this time, 
they also spoke of an alliance of Negroes and unorganized 
lower-class whites to overthrow the "power structure" of capi- 
talists, politicians and bureaucratic labor leaders whom they 
accused of exploiting the poor of both races while dividing 
them through an appeal to race prejudice. 

The increased criticism of liberals, white intellectuals, and 
federal bureaucracies was part of a broader turn to a renewed 
critique of the situation of blacks in the North. To a large 
extent, and despite such evidence as the Harlem uprisings of 
1935 and 1943, most white northerners had congratulated them- 
selves on the quality of their "treatment" of the Negro vis-a-vis 
that of the South. But direct action by civil rights leaders in 
Northern cities, largely in the form of street demonstrations, 
had failed to make any substantial impact on the problems of 
separate and inferior schools, slum housing, and police hos- 
tility, although it had succeeded in lowering some barriers to 
Negro employment. 

With the explosion of Harlem and several other northern 
cities in 1964, attention among black activist leaders was 
drawn sharply to the problem of institutional racism in the 
North, and this shift of focus was accelerated by the Watts 
riot the following year. In a real sense, the outbreak of riots 
not only surprised liberal whites, but most established 
black civil rights leaders as well. While undermining the moral 
credibility of liberal northerners as to the nature of the racial 
situation in the North, the riots also left most civil rights lead- 
ers without a vocabulary with which to express the deeper 
emotions of the northern ghettos. There was a sense among 
many young Negroes that established civil rights leaders could 
not get results from the white majority, that they could not 
speak to the kinds of issues raised by the riots, and that a 
wide gulf separated those leaders mostly of middle-class back- 
ground from the black urban masses. 

In this setting the rhetoric of "Black Power" developed, and 
was brought dramatically to the nation's attention on the 
Meredith march from Memphis to Jackson in June 1966. SNCC 
replaced its non-violent leader John Lewis with Stoke iy Car- 
michael, and CORE elected Floyd McKissick, who refused to 



96 Report of the Task Force on Law and Law Enforcement 

denounce the Watts riot of the previous year. Under Carmichael 
SNCC formally and deliberately disassociated itself from the 
civil rights movement's traditional commitment to nonvio- 
lence and took up a position on the leftward militant fringe. 
In 1967, while Rap Brown made incendiary speeches around 
the country, Carmichael traveled to Havana, Hanoi, and Moscow, 
popularizing a new black revolutionary ideology. The extrava- 
gant speeches and behavior of Carmichael and Brown amplified 
the psychological effect of the 1967 riots on both blacks and 
whites, while the riots themselves and especially the then 
exaggerated reports of organized urban warfare lent credi- 
bility to their rhetoric. 

Thus, with the frustration of the civil rights movement and the 
outbreak of the riots, younger and more militant black leaders 
and organizations emerged to represent the interests of the 
Northern urban lower classes, and the older representatives of 
the civil rights movement were required to redefine their pro- 
grams and techniques to accommodate these new forms of 
militancy. The impact of the riots on young Negroes and on 
established black leaders was graphically depicted in the testi- 
mony before the Violence Commission of Sterling Tucker, Direc- 
tor of Field Services of the National Urban League : 

I was standing with some young, angry men not far 
from some blazing buildings. They were talking to me 
about their feelings. They talked out of anger, but they 
talked with respect. 

"Mr. Tucker," one of them said to me, "you're a big 
and important man in this town. You're always in the 
newspaper and we know that you're fighting hard to bring 
about some changes in the conditions the brother faces. 
But who listens, Mr. Tucker, who listens? Why, with one 
match I can bring about more change tonight than with 
all the talking you can ever do." 

Now I know that isn't true and you know that isn't 
true. It just isn't that simple. But the fact that we know 
that doesn't really count for much. The brother on the 
street believes what he says, and there are some who are 
not afraid to die, believing what they say. 

When black activists came to interpret the urban riots as 
purposeful rebellions, and to advocate violence as one tech- 
nique for achieving black dignity and well being, the phe- 
nomenon of radical black militancy had become a part of the 
troubled American racial scene. 

(2) The ideological cause. By the mid-1960's, then, many 
militant black leaders had become convinced that the aims and 



American Society and the Radical Black Militant 97 

methods of the civil rights movement were no longer viable. 
The failures of the white majority to meet black expectations, 
the fact of the urban riots, and the increasing American involve- 
ment in Vietnam all served to catalyze a fundamental transfor- 
mation in militant black perceptions of the place of the Negro 
in American society. This transformation resulted in what can 
be called an "anti-colonial ideology," which is aptly expressed 
by a spokesman of the Black Panther Party as follows : 

We start with the basic definition: that black people in 
America are a colonized people in every sense of the term 
and that white America is an organized imperialist force 
holding black people in colonial bondage. 

Unique when expressed by Malcolm X in 1964, the anti- 
colonial perspective now provides many militant blacks with a 
structured world view and, in the case of the radicals, with 
a rationalization for violence. Many articulate black militant 
spokesmen now see the final hope of black Americans in identi- 
fication with the revolutionary struggles of the Third World. 
Even moderate leaders focus attention on the discrepancy be- 
tween the massive commitment of American resources abroad 
and the lack of a decisive commitment to cure the social ills 
stemming from racism at home. Martin Luther King wondered, 
for example, why "we were taking the black young men who had 
been crippled by our poverty and sending them 8,000 miles away 
to guarantee liberties in Southeast Asia which they had not found 
in Southwest Georgia or East Harlem." 

Black militants in America have in the past looked to Africa 
for recognition of common origins and culture, and the influ- 
ence has been reciprocal. W. E. B. DuBois, one of the founders 
of the NAACP in 1909-10, saw that the "problem of the color 
line" was international in scope, and was a guiding force be- 
hind the movement for Pan-African unity. Marcus Garvey, 
founder in 1914 of the Universal Negro Improvement Associa- 
tion, and other American and West Indian black nationalists 
have stimulated the development of African nationalism and 
informed the intellectual development of some of its leaders. 

Today the successful revolt against colonialism in Africa and 
other non-white regions has created a heightened sense of the 
international character of racial conflict and has provided the 
impetus for the growth of an anti-colonial ideology among 
American black militants. The revolt against colonialism has 
altered the structure of political power in the world, demon- 
strating to black militants in America that peoples supposed 
to be culturally and technologically "backward" can emerge 
victorious in struggles with ostensibly supeior powers. "Two- 
thirds of the human population today," wrote Malcom X, "is 



98 Report of the Task Force on Law and Law Enforcement 

telling the one-third minority white men, 'Get out/ And the 
white man is leaving." With the disintegration of white rule 
in Africa and the rise of autonomous black nations, political 
autonomy for Negroes in America ranging from traditional 
democratic concepts of community control to notions of geo- 
graphic separatism has received a new impetus and a new 
ideological component. 

The success of the movements for political independence in 
the colonial countries required a recognition that the plight of 
the "native" was a political problem, and that political action 
was the most effective vehicle of major social change. Early 
nationalist movements in Africa, therefore, sought ideologically 
to turn nearly every aspect of life into a political issue. This 
was true, for example, of the area of culture, whose political 
importance lay in the fact that "natives," as people without 
history or culture, were also seen as people without political 
claims of their own, and therefore as people to be dealt with 
from above benevolently or otherwise. 

Political ideology also worked its transforming magic on 
violence. Through the same process of "politicization," instances 
of black resistance in history were ideologically redefined as 
precursors of contemporary political struggles. Native crime was 
redefined as "pre-revolutionary" activity. Instances of rebellion 
were sought in the past and their significance amplified. 

This process extended to the creation of a whole new world 
view. History was viewed as an arena of struggle between co- 
lonial power and native population, with heavy emphasis on 
the intrinsically violent character of colonial domination and 
its supposedly irrevocable hostility to the interests of non- 
whites. Colonialism was seen as dependent on the routinization 
of violence, both physical and psychological, against the native. 
Consequently, revolutionary violence against the colonial re- 
gime was not only necessary, but justifiable, on both political 
and psychological grounds. Colonialism, wrote Frantz Fanon, "is 
violence in its natural state, and it will only yield when con- 
fronted with greater violence." Further, he said, "at the level 
of individuals, violence is a cleansing force. It frees the native 
from his inferiority complex, and from his despair and inac- 
tion ; it makes him fearless and restores self-respect." 

Under the influence of radical militant propagandists such 
as Stokely Carmichael, similar ideological developments have 
taken place among some blacks in America. The anti-colonial 
ideology has enabled black radicals to see urban riots as the 
harbingers of revolution and to see in urban violence the means 
of destroying white domination and achieving black dignity. 
If, as the Panthers would have it, "White America is an orga- 



American Society and the Radical Black Militant 99 

nized imperialist force holding black people in colonial bond- 
age" then it follows that violence against the police and other 
agents or symbols of authority is not crime but heroism, not 
merely an unlawful act but a revolutionary gesture against an 
illegitimate government. 

This poisonous ideology has found fertile soil in the black ghet- 
toes of America. Its roots do not yet, perhaps, go very deep, 
and the commitment to organized violence is found only among 
a relatively small group of black radicals. Most Negro leaders 
continue to believe that change can come in this country 
through legitimate, orderly political processes, and, indeed, that 
this is the only way it will come. But the anti-colonial ideology 
has the potential for further growth, and it will grow to the 
extent that the white majority can successfully be cast by radi- 
cal propagandists in the role of oppressors of the black majority. 

(3) The economic cause. History teaches us that men's frus- 
tration over the material circumstances of their lives is a fre- 
quent cause of collective violence. The more intense and wide- 
spread the discontent is, the more intense and widespread the 
violence is likely to be. Of course, the occurrence, extent and 
form of economically motivated violence are strongly influenced 
by other factors: the degree of legitimacy which the discon- 
tented group accords to the existing social and political order; 
the effectiveness of agencies of direct social control such as 
the police; the extent to which political institutions afford 
peaceful alternatives to violence; and many other factors. But 
the economic motive, the frustrated desire for improved liv- 
ing conditions, has undeniably been one important cause of 
violence in many periods of man's history. 

Has this cause been operative in the rise of radical black 
militancy? The answer is clearly yes. A dominant theme of 
black protest in the United States has always been the im- 
provement of the material circumstances of the Negro, and this 
goal has proved most frustratingly unobtainable precisely in 
the cradle of radical black militancy: the northern urban 
ghettoes. 

The conditions of life in the racial ghetto have been exhaus- 
tively examined elsewhere, particularly by the Kerner Commis- 
sion. It is unnecessary for our purposes to repeat these findings 
again in detail, since even a few of the facts of life in the ghetto 
are enough to suggest the level of frustration that prevails there : 

Unemployment rates for Negroes are double those 
for whites. In the ghettoes in 1966 the unemployment rate 
was 9.3 percent overall and even higher for blacks. More- 
over, in these urban poverty areas two and one-half times 
the number unemployed were underemployed : part-time 



100 Report of the Task Force on Law and Law Enforcement 

workers looking for full-time jobs, full-time workers earn- 
ing less than $3,000 per year, or dropouts from the labor 
force. Among nonwhite teenagers a group well represented 
both in riots and in radical black militant activities the 
unemployment rate in 1967 in poverty neighborhoods was 
approximately 30 percent. 

Blacks own and operate less than one percent of 
the nearly 5 million private businesses in the country 
typically small, marginal retail and service firms. Twenty- 
odd banks out of a national total of 14,000 are black- 
owned; 7 automobile dealerships out of 30,000; fewer than 
8,000 construction contractors out of a total of 500,000. 
In Washington, B.C., blacks comprise two-thirds of the pop- 
ulation but own less than 7 percent of the business. Ninety- 
eight percent of all black income is spent outside the black 
community. 

In the metropolitan northeast, Negro students start 
school with slightly lower scores than whites on standard 
achievement tests; by sixth grade they are 1.6 grades be- 
hind the white students, and by 12th grade, they are 3.3 
grades behind. Many Negroes between one-third and one- 
half among male students fail to finish high school, the 
Negro drop-out rate being more than three times the white 
rate. 

In 1965 a black woman was four times as likely to 
die in childbirth as a white woman; the black child was 
three times as likely to die in infancy as the white child. 
White people on the average lived 7 years longer than black 
people. 

In 1966 the national illegitimacy rate among non- 
white women was 26 percent; in many large city ghettoes 
it is over 50 percent : in Harlem 80 percent of the first-born 
are illegitimate. In 1966 over 50 percent of the known 
narcotics addicts were Negroes. Rates of juvenile delin- 
juency, violent crime, venereal disease, and dependency on 
public assistance are many times higher in disadvantaged 
Negro areas than in other parts of large cities. 

In the face of undisputed evidence of the disadvantaged con- 
dition of blacks in the urban ghettoes, some persons tend to 
minimize the importance of deprivation as a cause of riots 
and of radical black militancy. Two observations are commonly 
offered in support of this point of view. First, it is pointed out 
that Negroes have long suffered from frustratingly inferior 
living conditions, yet they have never before resorted to col- 
lective violence of the magnitude that has occurred in the last 
five years. Secondly, it is urged that while the lot of the Negro 



American Society and the Radical Black Militant 101 

may be an unsatisfactory one, nonetheless it has been contin- 
ually improving, particularly during the precise period when 
the greatest violence has occurred. In support of this second 
point, the following facts can be offered : 

The non-white unemployment rate in 1966 and 1967 
was the lowest since the Korean War, and in 1968 the 
black unemployment rate in poverty neighborhoods had 
dramatically declined by more than 50 percent in compari- 
son with the 1966 figure. 

The seven black-owned automobile dealerships (out 
of a total of 30,000) are seven times as many as there 
were 2 years ago. New black-owned banks are in forma- 
tion in seven cities, and one recent study showed that in 
certain areas of Harlem, black business ownership has risen 
to 58 percent. Between 1960 and 1967 there was a 47 per- 
cent increase in the number of blacks in white-collar posi- 
tions, craftsmen and operatives the better jobs compared 
to a 16 percent increase in the number of whites in such 
joys. 

The percentage of non-white persons enrolled in 
school is higher in each age group than it was in 1960. 
In central cities, the median years of school completed by 
Negroes 25 to 29 years of age has increased by about one 
year, and the proportion of this group completing high 
school has risen from 43 percent in 1960 to 61 percent 
in 1968. 

The non-white maternity mortality rate in 1965 
was 20 percent less than what it was in 1960 and less 
than one-ninth of what it was in 1940. The proportion of 
non-white households situated in housing that either is 
dilapidated or lacks basic plumbing has decreased sharply 
since 1960 in all areas, especially in large cities. Although 
the number of non-white families living in poverty areas 
in large cities has been fairly constant between 1960 and 
1966, of the total number of non- white families the per- 
centage living in such areas has declined sharply since 
1960. 

One fatal difficulty, however, undermines most of this seem- 
ingly plausible case against the proposition that the disadvan- 
taged condition of the Negro has been a significant cause of 
ghetto violence. That is the failure to pay adequate attention to 
the comparative economic condition of whites and Negroes, 
and to make this comparison over a longer period of time 
than the last few years. The lesson of history is not that pov- 
erty as such causes violence, but rather that frustrations aris- 
ing out of poverty can cause violence. There may often be 



102 Report of the Task Force on Law and Law Enforcement 

poverty but no frustration: the frustration is present only 
when the disadvantaged person expects, or feels entitled to, 
better material circumstances than those he is living under. 
Increasingly, the black man in America has come to expect living 
conditions on a par with those of the white man and has come 
to believe that he is entitled to such equality. 

These expectations that the economic gap between black 
and white will be closed have stemmed in part from the Ne- 
gro's experience of economic progress, and the frustration has 
occurred because in the late 1950's and the early 1960's the 
gap between black and white stopped narrowing and in some 
respects began to widen. 

One basic measure of the gap between black and white is 
median family income. Figure 1 plots median family income 
(total, white, and Negro) for the years 1950 to 1967. Exami- 
nation of this Figure reveals that while median Negro family 
income has risen steadily since 1950, the dollar gap between 
white and Negro family income has also steadily increased in 
nearly every year. 



LOQol 




7,000 



6,000 



5,000 

-NEGRO 



4,000 



3,000 



2.000 



ii I I I l 

1945 1950 1955 1960 1965 1970 

Figure 1. Median family income total, white and Negro. 



American Society and the Radical Black Militant 103 

Figure 2 expresses median Negro family income as a percent- 
age of median white family income. It indicates no significant 
Negro progress in closing the gap between the years 1950 and 
1965 but it does show a heartening upsurge between 1965 
and 1967. 



70%-?* 



60% 



50% 



40% 



30% 



20% 



10% 



1950 1955 1960 1965 1970 

Figure 2. Median Negro family income as a percentage of white family 
income, 1950-1967. 

In Figure 3 a further refinement of this analysis is intro- 
duced. In that Figure the average family income for the total 
population and for the non-white population has been divided 
by the average years of schooling for each group, and the re- 
sulting figure for the non-white population has then been ex- 
pressed as a percentage of the resulting figure for the total 
population. This percentage can be considered an "index of 
non-white economic satisfaction": if blacks and whites with 
the same amount of education were earning the same amount 
of income, the index would be 100 percent and blacks would be 
as satisfied economically as whites. Figure 3 shows that this 



104 Keport of the Task Force on Law and Law Enforcement 

is not the case, that the progress toward closing the gap be- 
tween white and black stopped in the early 1950's, and that 
the relative economic position of the Negro worsened over the 
next 10 years. Only in the last few years has the gap begun 
to close again, and still the index of non-white economic satis- 
faction is below its high point in the early 1950's. 

90% 



80% 



70% - 



60% - 







50% 



1940 1950 1960 1970 

Figure 3. Index of non-white economic satisfaction, 1940-1967. 



The analysis in these three figures is confirmed by other 
economic and social indicators. Thus, for example, although 
the non-white unemployment rate in 1966 and 1967 was 
the lowest since the Korean War, the ratio of non-white to white 
unemployment remained roughly the same: two to one. 
Although the school enrollment gap has narrowed for kinder- 
garteners and 16- and 17-year-olds, it has widened for persons 
in their late teens and early 20's, and proportionately more 
whites are going on to higher education. (Obviously, if propor- 
tionately higher percentages of non-white students do not con- 
tinue on to college and graduate school, the relative gains of 
Negroes in professional and skilled jobs of the past decade may 
soon level off.) In 1940 the illegitimacy rate among non- white 
women was 17 percent; in 1966 it had risen to 26 percent. 
Between 1950 and 1966 the percentage of fatherless families 
among Negroes rose by one-third while the percentage of father- 
less families among whites remained substantially constant. 

What these facts all add up to is that after a period of black 



American Society and the Radical Black Militant 105 

progress and rising expectations following the Second World 
War, a slackening of progress occurred and, by many indicators, 
the relative economic position of the Negro deteriorated over 
the next 10 years. From defeated expectations of progress, and 
an unsatisfactory condition to start with, frustration arises. It 
was this frustration which has been one important cause both 
of the recent ghetto riots and of the rising violence of radical 
black militancy. 

(4) The psychological cause. All men are born with drives 
and needs which conflict with those of other human beings. In 
all societies, parents, caretakers and authority figures of one 
kind or another are charged with the responsibility of meeting 
the child's basic needs and helping the young convert their 
drive energy into skills and patterns of behavior which will 
help them cope with the demands of an adult society. This is 
the process of "socialization." Without satisfactory socializa- 
tion, these energies may result in a variety of troublesome 
forms of personal behavior, including self-destructive action 
and unwarranted conflict and violence against people and 
property. 

When, however, the young are adequately developed and so- 
cialized and are able to cope as adults, they enjoy a sense of 
adequacy and security. Being able to cope and as a result re- 
ceiving the respect and acceptance of significant peers is the 
primary way an individual meets basic and man-made needs. 
When members of a society experience satisfactory patterns of 
socialization, a high level of peace and stability can exist in 
families and the society without the use of physical force to 
control individuals or groups. 

The basic pattern of socialization running through the black 
man's history in America has been the destructive, unsatisfac- 
tory relationship of dependency and subordination vis-a-vis the 
white man. In slavery the master functioned as a father, ruler 
and god. The condition of total power in the master and total 
powerlessness in the slave, with the master providing and regu- 
lating the slave's most basic needs, resulted in an intense emo- 
tional bond between the black slave and the white master. Over 
time the values of the white master and of the slavery system 
were often internalized by the slaves and transmitted from gen- 
eration to generation under the continuing influence of the slav- 
ery system. The myth of Negro inferiority and white supremacy 
was widely and deeply ingrained into black man and white 
man alike. 

Under segregation and in the ghetto the same pattern pre- 
vailed, although in a constantly weakening form. The clear 
implication of segregation was still that whites were superior 



106 Report of the Task Force on Law and Law Enforcement 

and Negroes inferior, that the white man was the father and 
the Negro, the "boy." But other social forces were now un- 
leashed: even under the segregation system black dependency 
on white power was sharply decreased in comparison with 
slavery, and in the teeming racial ghettoes of the Northern 
cities the old relationship of dependency became attenuated in 
the extreme. 

The widening "crack" in the pattern of forced dependency 
was the beginning of the development of a positive black group 
identity. Many blacks, as preachers, teachers, physicians, law- 
yers and other professional service people, began to develop 
skills which gave them a sense of adequacy and the capacity 
to cope. In the South in particular, successful business com- 
munities developed. Black youngsters were able to identify with 
people like themselves in positions of leadership and respect. 
Obviously the level of self-respect was limited by the implications 
of a segregated system, but nonetheless it was of tremendous 
value in enhancing black self-esteem. More among the black 
masses were better able to earn enough money to take care of 
their families and as a result were able to develop a sense of 
personal adequacy. Involvement in two world wars and achieve- 
ment in entertainment, athletics, and other areas, together with 
the myriad effects of migration to Northern cities, began to 
change the black American's image of himself. A more positive 
sense of self began to replace the previous negative self -concept. 

Black adequacy and competence is now built on more than 
white approval. A significant number of black parents no 
longer teach their children to accept white authority right or 
wrong. On the other hand, many whites, now economically 
more secure and better educated, no longer need or approve of 
the scapegoating of blacks. The white majority is increasingly 
transcending the limits of the old racial myths of America. In 
short, the tie that bound the old socialization pattern of black 
social, economic and psychological dependence on a dominating, 
often oppressive white community is now breaking decisively 
for the first time in American history. 

With the destruction of the old socialization pattern and the 
breaking of the dependency bond have come expected responses, 
some constructive, some destructive. The painful social process 
is in some ways analogous to the difficult period of adolescence 
in the individual when the achievement of adult independence 
often seems to the youth to require a destructive rejection, not 
merely a quiet putting away, of childish things. Many militant 
blacks who are now seeking a positive cultural identity and a 
new pattern of black socialization also experience a "black rage" 
against whites who seem to block this development by their 



American Society and the Radical Black Militant 107 

unwillingness to "get off the back" of the striving black man. In 
the case of the black radicals, this rage is expressed in aggres- 
sive violence against the newly vulnerable symbols of white 
authority such as the police. 

The breaking of the dependency bond, acceptance of black- 
ness as a positive value, and a sense of outrage is an energizing, 
explosive set of psychological developments for the rising gen- 
eration of militant blacks. The black American often experi- 
ences intense and ambivalent feelings as a result and is con- 
fronted with numerous questions and conflicts. Should he at- 
tempt to become a part of the mainstream of his society now 
changing but once so abusive and rejecting or is he obliged to 
retaliate or reject it? Does manhood require retaliation, rejec- 
tion or even violence? Can he trust what he sees as a white 
America which has never before demonstrated itself trustworthy 
with regard to recognizing and protecting the human rights 
of black Americans ? 

The new feeling among blacks sometimes results in a loss 
of self-control after "trigger Incidents" (reflecting the old pat- 
tern of white superiority and black helplessness) with attend- 
ant burning of property and other acts of violence. With a 
temporary breakdown in personal control, some blacks loot and 
plunder the "symbolic enemy." This reaction is not one that 
is found only among a small "riff-raff" who are sometimes 
thought to be responsible for urban riots. Studies of participa- 
tion in the 1967 riots have found that (1) a substantial minor- 
ity, ranging from 10 to 20 percent, participated in the riots; 
(2) one-half to three-quarters of the arrestees were employed 
in semi-skilled or skilled occupations, three-fourths were em- 
ployed, and three-tenths to six-tenths were born outside the 
South; and (3) individuals between the ages of 15 and 34 and 
especially those between the ages of 15 and 24 are most likely 
to participate in riots. 

In the one-to-one black-and-white relationship where mutual 
respect exists and where interaction occurs on a personal 
rather than symbolic level, constructive interaction between the 
races is less difficult, perhaps more so than ever before. It is in 
his abstract role as the symbolic enemy that the white man is 
anathema to some radical black militants. Disturbingly, this 
symbolic perception of whites has filtered down to youngsters, 
sometimes as young as three or four years of age. Just as 
young members of the Klan and other children of the "white 
ghetto" are taught that it is permissible to abuse blacks, some 
young blacks are now being taught that it is permissible to 
abuse whites in particular, white policemen (or "pigs" in 
radical argot). 



108 Report of the Task Force on Law and Law Enforcement 

The energy released by America's rejection of the old racial 
pattern and the development of a positive group concept among 
blacks is profound. If channeled, it can be a powerful force 
for black community development, pride and constructive 
change within the present social system. But if it is to be chan- 
neled and if new, healthy patterns of socialization among blacks 
are to replace the old pattern of white superiority and black 
subordination, then it must be clear to blacks that support of 
the society's institutions and peaceful participation in them is 
in the interest of justice for the black masses. 

Constructive attitudinal and economic changes have been 
made. In many places, members of the white majority have 
shown an unprecedented interest in facilitating black entrance 
into the mainstream of American life. The interaction is estab- 
lishing new and more healthy ground rules for black-and-white 
relations. But often the complex factors related to emergence 
from a dependent, despised position to full participation in the 
society are often neither well understood nor subject to control 
in the short run. Thus the black man's passage to full dignity 
and well-being in America has been, and will continue to be, 
marred by violence and destruction as well as by constructive 
action and positive social change. 

RESPONSES TO RADICAL BLACK MILITANCY 

What are the principles which should guide the nation in 
dealing with the problem of radical black militancy? What are 
the policy implications of our analysis of the nature and causes 
of this phenomenon? 

First: because radical black militancy is a highly com- 
plex phenomenon, with many different causes, no unbal- 
anced, one-dimensional solution is possible whether it be 
a program of intensified law enforcement or a program of 
expanded social reform. 

Our analysis of radical black militancy has been an effort 
both to see this pehnomenon in the perspective of the larger 
militant movement and to uncover the different kinds of fac- 
tors which have operated to produce a commitment to illegal 
violence on the part of a small but significant element in the 
black community. We have seen that the radicals' destructive 
notions of "self-defense" or guerrilla warfare are often inter- 
woven with constructive ideas in the areas of politics and cul- 
ture. We have seen that in the rise of radical black militancy 
there has been a strong political factor the new black radical 
leaders who have emerged following the failure of the society 



American Society and the Radical Black Militant 109 

to respond adequately to the civil rights movement in the mid- 
1960's; there has been an ideological factor the spread of rev- 
olutionary "anti-colonial" propaganda; there has been an eco- 
nomic factor the frustration bred by living conditions in the 
racial ghettoes; there has been a psychological factor the vio- 
lent emotions unleashed as blacks break out of their dependent 
position. Moreover, underlying all these elements has been the 
historic institutional legacy of white supremacy and black sub- 
ordination which has decisively shaped the Negro experience in 
America, including the recent emergence of a virulent radical 
black militancy. 

In the face of complexities of this magnitude, it is impossible 
to believe that any one-dimensional package of solutions can 
effectively meet the problem of radical black violence. Improved 
law enforcement can undoubtedly deter and apprehend some 
radicals who engage in illegal violence but the policeman and 
the judge have little power to check the spread of an ideology, 
to improve economic conditions or to alleviate psychological 
pressures. Vigorous efforts to secure the political rights of Ne- 
groes and accelerated social reforms in employment, education 
and housing can undoubtedly open the doors of opportunity 
and constructive citizenship for increasing numbers of blacks 
who might otherwise be tempted to violence but in the short 
run incendiary leaders, violent ideologies and black rage can 
prove dismayingly unresponsive to well-meaning programs of 
social and political reform. Radical black militancy is not a one- 
sided problem and it does not admit of one-sided solutions. 

Second: because radical black militancy is, like urban 
rioting, a phenomenon deeply rooted in the enduring leg- 
acy of white supremacy and Negro subordination, we must 
continue and intensify our national commitment to secure 
the full and equal inclusion of black citizens into all as- 
pects of American life. 

In order for there to be a remission in the cancerous growth 
of black violence, we must have unprecedented national action 
in support of the goal of black dignity and equality. Today's 
violent racial outbursts and race hatred are the outgrowth of 
fundamental attitudes, customs and institutions both white and 
black that have worked their way into our society for cen- 
turies. Today we reap what we have sown. We need action 
in the words of the Kerner Commission, "compassionate, mas- 
sive and sustained, backed by the will and resources of the most 
powerful and richest nation on this earth" to create quickly, 
as a nation, what we as a nation have destroyed through cen- 



110 Report of the Task Force on Law and Law Enforcement 

turies of slavery and segregation: the necessary preconditions 
for equal black participation in American life. 

The movement to secure the inclusion of black citizens in 
all aspects of American life must be continued and intensified. 
In particular, obstacles must be removed which block the oppor- 
tunities for duly elected rather than self-appointed black lead- 
ers to enter into the political process and to seek to advance 
the interests of their constituencies. The demand of local black 
communities for greater control over decisions that affect them 
and for "self-determination" is not inconsistent with the fun- 
damental goal of inclusion. Rather, this demand is consistent 
with the historic commitment of the United States to democratic, 
local decision-making, as well as with the realities of the process 
by which other minority groups have made their way into the 
mainstream of American life. Unless the political rights of the 
"inner city" are respected and new local government structures 
are found under which these rights can be exercised, then radical 
black militancy will continue to attract more and more Negroes 
at the expense of the goal of peaceful inclusion of black and white 
in a single society functioning according to universally accepted 
political processes. 

Third: because radical black militancy is a powerful 
ideological force among Negroes in the lower socio-economic 
brackets, the efforts which must be made to control the 
violence of black radicals must also involve attention to the 
effect of such efforts on the legitimacy of the existing so- 
cial order. 

The radical black militant who attacks a policeman or bombs 
a college building is not simply a common criminal. He is in- 
deed a criminal, but he is different from the burglar, the robber 
or the rapist. He is acting out of a profound alienation from 
society. He believes that the existing social and political order 
in America is not legitimate and that black people in America 
are being held in "colonial bondage" by "an organized imperial- 
ist force." Thus he is able to interpret his act of violence not 
as a crime but as a revolutionary (or "pre-revolutionary") act. 
As an isolated occurrence, this distorted interpretation would 
not be significant but the interpretation is sustained by an 
articulated ideology that is today competing with traditional 
American values for the minds and hearts of the rising gener- 
ation of black ghetto residents. 

Whenever the police illegally harass a radical black militant 
leader, whenever the courts fail to accord such a person equal 
justice under law, whenever political leaders advocate indis- 



American Society and the Radical Black Militant 111 

criminate suppression of all expressions of discontent, then the 
anti-colonial ideology gains new adherents: new proof appears 
to have been given that the social order in the United States 
is inherently and unalterably oppressive of the black race. On 
the other hand, when leaders of undoubted goodwill and de- 
cency vacillate in the condemnation and control of unlawful 
black violence because of the grievances underlying it, or when 
responsible authorities minimize or conceal the seriousness of 
the violent crime problem among ghetto Negroes so as not to 
be "racists," then such leaders seem to admit that the social 
order is so burdened with an ineradicable "guilt" as to be al- 
most unworthy of preservation : this too feeds revolutionary vio- 
lence. To deal effectively with the developing ideology of radical 
black militancy, we shall have to have able and effective leaders, 
skilled in the practice of statecraft, who will energetically 
strengthen, and not impair, the legitimacy of the institutions 
for whose preservation and improvement they are responsible. 

Fourth: because radical black militancy is but one 
highly visible aspect of our total racial problem, uncom- 
mon courage and compassion will be required of the Amer- 
ican people if the necessary steps toward solution are to 
be taken. 

America's racial problem, of which radical black militancy is 
but one highly visible aspect, is grave and deep. It may be, how- 
ever, that today we as a nation understand for the first time 
the full, terrible dimensions of this problem and what it has 
done to our people, both black and white. Perhaps we realize 
that its solution will require far more of us than merely to 
recover old values or to improve on old techniques. Perhaps 
we now see that racial peace and justice will require us, white 
and black alike, in fact to transcend our whole history to 
create, often painfully, new institutions, new customs, new at- 
titudes, in which the old self -validating judgment of white 
supremacy and black inferiority will be finally superseded. 

Uncommon courage and compassion will be required from 
all our people if this challenge is to be met. We must all do 
what is right because it is right not in the vain hope that it 
will quickly put an end to violence. A nation does not easily 
find its way out of a problem of this magnitude: we shall have 
to have the courage and the compassion to try and fail and try 
again, to see it through, to hold together, until we finally be- 
come, for the first time, one society, black and white, together 
and equal. 



112 Report of the Task Force on Law and Law Enforcement 

SOURCE NOTE 

This chapter is an effort at synthesis and evaluation of materials on 
contemporary racial violence contained in the reports of other Task Forces of 
this Commission and in the Report of the Kerner Commission; it is not 
based to any significant degree on original research by the Task Force on 
Law and Law Enforcement. The principal sources are : Graham and Gurr, 
Violence in America, Historical and Comparative Perspectives, Report of 
Task Force on Historical and Comparative Perspectives on Violence in 
America, Ch. 11 "The Dynamics of Black and White Violence" (Comer), 
Ch. 9 "Black Violence in the 20th Century: A Study in Rhetoric and 
Retaliation" (Meier and Rudwick), and Ch. 19 "The J-Curve of Rising 
and Declining Satisfactions as a Cause of Some Great Revolutions and a 
Contained Rebellion" (Davies) ; Skolnick, The Politics of Protest, Report of 
Task Force on Violent Aspects of Protest and Confrontation, Ch. IV 
"Black Militancy"; Report of the National Advisory Commission on Civil 
Disorders, Mar. 1, 1968, particularly Part II ("Why Did It Happen?") ; 
also, One Year Later: An Assessment of the Nation's Response to the 
Crisis Described by the National Advisory Commission on Civil Disorders, 
Mar. 1, 1969, prepared by Urban America Inc. and The Urban Coalition. 



CHAPTER 6 

THE RESPONSIVENESS OF 
LOCAL GOVERNMENT* 



The growing discontent with American local government goes 
beyond an occasional desire to "vote the rascals out" and is in- 
creasingly focused on the basic structure and procedures of local 
government. This disaffection takes two forms stressing one or 
the other of the two basic sets of expectations toward govern- 
ment: that government will be (1) effective and (2) accountable. 
The former expectation is being emphasized by those groups, pre- 
dominantly middle and upper class, whose fundamental concern 
is the cost-effectiveness of local government. The latter desire for 
accountability of local government officials reflects the wide- 
spread feeling among the young, the old, the poor, and especially 
the black and Spanish-speaking minorities, that local government 
not only fails to produce what they want, but also, and more 
importantly, even to listen. 

Out of these two categories of disaffection from local govern- 
ment, two agendas for reform are being articulated. One, much 
in the tradition of the earlier muncipal reform movement, 
stresses the need for metropolitan government, with clear 
powers to coordinate efforts to overcome problems such as envir- 
onmental pollution, land use and transportation planning. The 
other agenda for local government reform calls for inner city de- 
centrjalization to give a greater opportunity for citizen partici- 
pation in those affairs most closely affecting ghetto residents: 
law/enforcement, education, housing, and municipal services of 
^various types. 

Although these two agendas for reform appear to be in con- 
flict with each other insofar as one calls for greater centraliza- 
tion and the other for greater decentralization more careful 
comparison of the two reveals complementarity. The difference 
is rather one of emphasis, stemming from the different .attitudes 
and environments peculiar to each set of reformers. Moreover, 



* This chapter was prepared by Jon Ellertson, Department of Political 
Science, Massachusetts Institute of Technology. 

113 



114 Report of the Task Force on Law and Law Enforcement 

past experience with municipal reform indicates the practicality 
of the two groups working in common to effect a coalition to 
accomplish their respective goals. 

Both categories of disaffection are being expressed in demon- 
strations, typified by the taxpayers' revolt on the one hand, and 
welfare sit-ins on the other. The demands for greater participa- 
tion, if frustrated, are more likely to lead to violence than frus- 
tration of the demands for greater effectiveness. The frustration 
of the metropolitan reformers may intensify, to be sure, but this 
set of reformers has a much stronger sense of personal effective- 
ness, a sense that the political system is open to their influence 
in general, although perhaps not to their particular reform 
measures. As a result, they can continue to channel their frus- 
trations and dissatisfactions through the conventional means of 
influence. 

The other set of dissidents, on the contrary, represents a con- 
sitituency which has a low sense of political efficacy. This sense of 
futility promotes withdrawal from the conventional channels 
of political influence (for them largely non-existent in any 
meaningful sense) only to erupt sporadically in violence. Recent 
research confirms that riot-prone citizens have a lower sense of 
political efficacy than do demonstration-prone individuals. 1 

The search for responsive local government by these two 
groups is of critical concern since "some sort of claim to ulti- 
mate responsiveness has come to replace custom or religious 
belief as the legitimating grounds for popular support and obedi- 
ence." 2 A rapid and dramatic effort to satisfy the demands 
for increased responsiveness of local government seems necessary 
for the effective maintenance of public order in our cities. 

THE SHORTCOMINGS OF THE MUNICIPAL 
REFORM MOVEMENT 

When it was initiated in the last century, agitation for reform 
sought to improve local government's responsiveness both in 
terms of efficency and accountability. Basically the goal was to 
make government more consistent with the predominantly mid- 
dle-class White Anglo-Saxon Protestant values of the reformers, 
which included a frankly patronizing attitude toward the prob- 
lems of the lower classes. The agendas for reform, therefore, in- 
cluded an elimination of the graft and incompetence of the "spoils 
system" in general, and the urban political machine in particular, 
as well as various benefits for the poor. Two principal goals 
were to make the "business of local government" more compe- 
tent, and to "reduce the impact of partisan, socio-economic 
cleavages on governmental decision making, to immunize city 



The Responsiveness of Local Government 115 

governments from 'artificial' social cleavages race, religion, 
ethnicity, and so on." 3 

One of the reformers' guiding assumptions was that it was 
possible to identify a general interest, the so-called "public in- 
terest," which applied to the city as a whole and which should 
prevail over competing "partial interests." Toward this end, 
the ward basis of representation to city councils gave way, in 
many cities and towns, to an "at large" system. Political parties 
at the municipal level were believed to be unnecessary and 
actually pernicious. Instead, the municipal reform ideal placed its 
faith in a bureaucratic, rather than political, process for the 
identification of the "public interest." As Edward Banfield and 
J. Q. Wilson have described this ideal, the solution "was to put 
affairs entirely in the hands of the few who were 'best qualified,' 
persons whose training, experience, natural ability, and devotion 
to public service equipped them best to manage the public busi- 
ness." 4 

By denigrating partisan politics and weakening the party 
machine, the reformers inadvertently reduced the responsive 
capability of local governments vis-a-vis important minorities. 
Moreover, according to Theodore Lowi, this decline of the 
political machines was matched by the development of "New 
Machines," professionally organized autonomous career 
agencies. 5 Urban bureaucracies, writes Lowi, "are relatively 
irresponsible structures of power. That is, each agency shapes 
important public policies, yet the leadership of each is relatively 
self -perpetuating and not readily subject to the controls of any 
higher authority." As a consequence, the modern city is efficiently 
run, but poorly governed due to the existence of 

islands of functional power before which the modern mayor 
stands improverished. No mayor of a modern city has pre- 
dictable means of determining whether the bosses of the New 
Machines the bureau chiefs and the career commissioners 
will be loyal to anything but their agency, its work, and 
related professional norms. . . . The New Machines are 
Machines in that the power of each, while resting ulti- 
mately upon services rendered to the community, depends 
upon its cohesiveness as a small minority in the vast dis- 
persion of the multitude. 6 

Many among this powerless "multitude" are the poorly edu- 
cated lower-class minorities who are excluded from participa- 
tion in these "New Machines" because of the establishment of 
"merit" criteria for job selection. The "New Machines" are there- 
fore insulated both from authority above and from penetration 
below. 



116 Report of the Task Force on Law and Law Enforcement 

Thus the urban bureaucracies have not lived up to the re- 
formers' expectations of responsiveness. The inability of mayors 
to coordinate the relatively autonomous functional subcenters of 
power contributes to the feeling of many that urban priorities 
are jumbled and often inconsistent. The functional decentraliza- 
tion of authority has increased the efficiency of government 
in dealing with the specific activities around which each bureauc- 
acy is organized, to the neglect of "those activities around which 
bureaucracies are not organized or those which fall between or 
among agencies' jurisdictions." In the latter cases, "the cities are 
suffering either stalemate or elephantitis an affliction whereby 
a particular activity, say urban renewal or parkways, gets pushed 
to its ultimate success totally without regard to its balance 
against the missions of other agencies. In these as well as in 
other senses, the cities are ungoverned." 7 

Nor do many citizens have easy access to these new sources 
of autonomous power, either indirectly via the mayor or council- 
men, or directly for the redress of grievances. Indeed, attempted 
access by groups of urban residents constitutes "political inter- 
ference" in the terminology of the municipal reform movement. 
Dissatisfactions are generated which remain unresolved in the 
absence of channels for the expression of needs and demands. 

In sum, the municipal reform movement, which sought to make 
local government more responsive, inadvertently promoted struc- 
tural changes which in fact reduced responsiveness to the in- 
terests of certain groups. Nonpartisanship eliminated some artic- 
ulation channels. By divorcing technical competence from polit- 
ical accountability, the reformers overlooked the necessity to 
mediate and balance demands for the application of that tech- 
nical competence. The assumption that "there is no Democratic 
or Republican way to pave a street" neglects the need to decide 
which streets will be paved and which not, given the inevitability 
of scarce municipal resources. 

Of cource, allocation of scarce resources is not a problem if 
everyone agrees that, in the public interest, there is only one 
optimum solution. Where reformed local governments do serve 
relatively homogeneous communities, they retain their quality of 
responsiveness and legitimacy : 

Winnetka [is] a suburb of Chicago the residents of which 
are almost all upper-middle-class Anglo-Saxon Protestants. 
Winnetkans are in fundamental agreement on the kind of 
local government they want: it must provide excellent 
schools, parks, libraries and other community services and 
it must provide them with businesslike efficiency and per- 
fect honesty. Politics, in the sense of a competitive struggle 
for office or for private advantage, does not exist. . . . [T]he 



The Responsiveness of Local Government 117 

civic associations agree upon a slate of those 'best quali- 
fied to serve' which the voters ratify as a matter of course. 
Members of the city council leave 'administration' entirely 
in the hands of the city manager. 8 

The greatest shortcomings of the reform movement are in the 
large cities which wholly lack such homogeneity of interests 
and which contain a number of quite different lower-class con- 
stituencies. 

Although considerable scholarly debate exists as to the rela- 
tive advantages and disadvantages of the machines and the 
reform movement, a recent analysis by Greenstone and Peterson 
concludes that 

both the machine and the reform movement had conserva- 
tive consequences. For businessmen 'on the make/ machine 
politics provided franchises and special privileges. For their 
better established successors good government seemed both 
efficient and morally praiseworthy. The machine controlled 
the lower-class vote, while somewhat later the reformers' 
structures reduced it. By drastically reducing party com- 
petition each protected vital business interests from signifi- 
cant political interference. 9 

Greenstone and Peterson also note that following World War I, 
the social conscience of the reform movement was conspicuously 
absent, and reform focused more on corruption than on social 
ills and the needs of the lower classes. 10 

THE MOVEMENT FOR CITIZEN PARTICIPATION 
AND COMMUNITY CONTROL 

As this neglect of their interests has been perceived by mem- 
bers of the inner city lower classes, some have been motivated 
to join the middle classes in the move to the suburbs to escape 
from their dissatisfaction with irresponsive big city govern- 
ment. But those minorities prevented by poverty and discrimi- 
nation from exercising that option have been developing their 
own distinct municipal reform agendas. 

These new agendas for reform stress the growing desire of 
inner city residents to have a form of local government which is 
as responsive to their expectations about the education of their 
children, the protection of their values, and the provision of 
services as they perceive a typical suburbanite's government is. 
The experience of many residents, in the black community in par- 
ticular, with the large service bureaucracies has taught them that 
the desired degree of responsiveness, particularly accountability, 
can only be acquired through some sort of decentralization and 



118 Report of the Task Force on Law and Law Enforcement 

increased citizen participation in local government. More and 
more, the consensus is, "We'd rather do it ourselves." 

This desire for more citizen participation grows out of a com- 
bination of increased positive self -awareness and dignity on the 
one hand, and increased frustration in attempting to deal with 
local officials on the other. The underlying motivation is the 
quest for equality. Having been denied equal sreoprraphic mobility 
because of poverty and "suburban separatism," n many black 
Americans have turned toward a ghetto control and trans- 
formation strategy. The demand for citizen participation has 
also received impetus from the various federal urban renewal 
programs specifying that local planning agencies are to pro- 
vide for citizen participation. Under the anti-poverty legislation, 
moreover, the symbol of participation was elevated by the clause 
providing for "maximum feasible participation" of the poor. 
Since its appearance, some self-assertive individuals have given 
the clause a "radically transformed construction which drops the 
'feasible' and reads 'participation' to mean 'control.' " 12 

Just as "maximum feasible participation" provided sufficient 
ambiguity to cover divergent opinions, the term "community 
control" 13 gives rise to different understandings. For some, 
it is an enhanced advisory role in certain city agencies. For 
others, it means complete separation from City Hall. The distri- 
bution and strength of these interpretations of the demand for 
greater participation undoubtedly differs from city to city. There 
seems to be no single model for implementation of these ideals, 
although the evidence of lack of consensus in the ghetto is prob- 
ably strongest in the minds of "outsiders" who are neither privy 
to neighborhood meetings nor take advantage of reading the 
black community press. The unmistakable thrust of the demands 
for citizen participation and community control is a decentraliza- 
tion of authority. 14 

THE MOVEMENT FOR MODERNIZATION 
AND CONSOLIDATION 

This emphasis provokes a predictably negative reaction from 
many Americans, including some heirs of the municipal reform 
movement (many of whom enjoy suburban residence). Their 
concern about local government has recently focused on the exces- 
sive fragmentation of local jurisdictions, both functional and 
geographic. Their agendas seek to make local government more 
responsive through coordination and consolidation. Much of 
the sentiment behind these reforms reflects middle- and upper- 
class reluctance to pay taxes which cannot be efficiently used. 
Cost effectiveness is the emphasized criterion. 



The Responsiveness of Local Government 119 

These reformers likewise see the need to "modernize" the 
business of government, which has become outmoded because pop- 
ulations and problems have spilled beyond old jurisdictional 
boundaries. Urban problems, in this view, are metropolitan prob- 
lems : environmental pollution, transportation and land-use plan- 
ning. Some who see the necessity of creating larger, metropolitan 
jurisdictions also envision solutions to the inequities of municiDal 
finance with the accompanying problems of equity in housing, 
education, and related services which strain inner city coffers 
and lead to civil unrest. 

An important example of this category of local reform 
sentiment is the 1966 statement by the Committee for Economic 
Development, which made the following assessment: 

(1) Most local government units are too small to pro- 
vide effective and economical solutions to their problems; 

(2) Extensive overlapping layers of government cause 
confusion and waste the taxpayers* money; 

(3) Popular control over local government is ineffective 
because of the excessively long ballots and the confusions 
caused by the many-layered system of government; 

(4) Policy leadership is typically weak, if not nonex- 
istent ; 

(5) Archaic administrative organizations are totally in- 
adequate to the functional demands made upon them ; and 

(6) The professional services of highly qualified person- 
nel are typically not attracted to local government. 15 

The CED report concluded that the most pressing problem 
of local government in metropolitan areas is the "bewildering 
multiplicity of small, piecemeal, duplicative, overlapping local 
jurisdictions" which are unable to cope with the difficulties of 
managing modern urban affairs. "The fiscal effects of duplicative 
suburban separatism create great difficulty in provision of costly 
central city services benefiting the whole urbanized area. If local 
governments are to function effectively in metropolitan areas, 
they must have sufficient size and authority to plan, administer, 
and provide significant financial support for solutions to area- 
wide problems." 16 

The CED assessment has been echoed and expanded by the 
more recent Report of the National Commission on Urban Prob- 
lems, popularly known as the Douglas Commission. Although 
much more comprehensive, the Douglas Commission's recom- 
mendations for "Modernizing Urban Government Structure" 17 
seem to emphasize the same interpretation of responsiveness. At 
the same time, the Douglas Commission recommendations stress 
more clearly than the CED that a reduction of fragmented 
authorities would enable responsibility to be fixed at a focal point 



120 Report of the Task Force on Law and Law Enforcement 

from which coordination and balance in priorities can be made 
and efficiently executed. Moreover, the Douglas Report is more 
realistic about the obstacles to reform and cognizant that differ- 
ent kinds of improvements could result from "changes that fall 
short of the comprehensive amalgamation of all local govern- 
ments in each metropolitan area." 18 

Like the CED statement, the Douglas Report places less em- 
phasis on the need to meet the widespread demand for greater 
citizen participation although both do recognize these demands 
in a number of their proposals. Both tend to stress, however, the 
deconcentration of authority from city hall, rather than the 
devolution of authority an important distinction obscured by 
use of the word "decentralization." Deconcentration is "the 
delegation of authority adequate for the discharge of specified 
functions to staff of a central department who a^^ situated out- 
side the headquarters," 19 a notion which is inherent in the 
Commission's proposal for neighborhood city halls. Devolution, 
on the other hand, is "the legal conferring of powers to dis- 
charge specified residual functions upon formally constituted 
local authorities," 20 an idea recognized in the CED proposal 
for neighborhood councils and in the Majority report of the 
Douglas Commission 21 but more strongly emphasized in the 
Douglas Commission Minority Report. Decentralization em- 
braces both of these processes of structural adaptation, though 
the latter is significantly different in promising greater poten- 
tial subunit autonomy. 

Designed to serve 25,000 to 50,000 residents, the neighborhood 
city halls envisioned by the Douglas Commission are expected to 
help fulfill what the Commission called "the great need for a feel- 
ing of participation in decisions by the neighborhood residents 
whom the decisions will affect." 22 But the Majority Report con- 
veys considerable ambiguity about what types of citizen partici- 
pation ought to be allowed. On the one hand, there is a concern 
for "reaching the more disaffected, inactive members of a com- 
munity," 23 for providing, though the neighborhood city hall, "an 
office to entertain citizen complaints and problems." 24 On the 
other hand, the Majority Report makes it clear that these new 
offices are intended primarily to provide service assistance to 
the "unsophisticated" welfare recipient, not a podium for "angry, 
organized citizens protesting the location of a new school, the 
demolition for an urban renewal project, the rerouting of a 
sewer line, or the laying down of a freeway." 25 Citing the 
experience of the OEO Community Action Program, the Majority 
adds the warning that "trying to institutionalize protest under 
the very auspices of city government will not succeed." 26 

The Majority Report consequently responds rather cautiously 



The Responsiveness of Local Government 121 

to the demands for greater citizen participation. It does advise 
that some devolution of power to the neighborhood level may be 
permitted, such as 

the power to make or direct the making, of small neigh- 
borhood improvements. Examples are addition of more trash 
receptacles, minor repairs to public property, and tree and 
flower planting. Still more popular would be better lighting 
of streets and alleys, more frequent trash pickup, stop signs 
at certain intersections and so on. ... This is the kind of 
small improvement that is easily made, but which unsophis- 
ticated residents simply do not know how to obtain. 27 

The Majority Report suggests, optimistically, that this minor 
concession to demands for greater resident involvement "would 
cost the city little but would enlist the immediate enthusiasm 
of the residents. . . . Slight as it seems, the knowledge of area 
residents that they have an accesible means of affecting their 
own immediate environment can have a multiplier effect on 
citizen self-confidence and involvement." 28 

This discussion by the Douglas Commission majority is a 
recognition of the idea, familiar to political science, that suc- 
cessful influence attempts increase the individual's sense of polit- 
ical efficacy. It remains to be demonstrated, however, that such 
small successes could indeed reverse the strong feelings of futility 
conditioned by ghetto life. Although small victories may win 
wars, many who are restless and dissatisfied with the current 
non-responsiveness of local government would not consider the 
suggested "participation" of sufficient salience to warrent in- 
volvement. Instead, such suggestions are likely to be spurned 
as merely "token", as of no importance in comparison with other 
concerns, such as education, police-community relations, employ- 
ment, or housing. 

The overriding issue, which is noted by the Minority Report, 
is the issue of equality of political expression : 

Even with a thorough-going metropolitan area plan of gov- 
ernment, there are many functions that will still reside with 
the small communities in the suburban areas. It seems 
logical, then, that certain similar functions should reside 
with inner city communities. This, then, would mean that 
the taxpayer and voter in the inner city of a metropolitan 
area would have the same kind of leverage on the policies 
that affect his neighborhood growth, redevelopment, or 
maintenance, as his fringe area counterpart. 29 

In this sense, the demands for greater citizen participation are 
really demands to eliminate a double-standard in American local 



122 Report of the Task Force on Law and Law Enforcement 

politics a paternalistic bias which is sometimes perceived as 
an attempt by the dominant majority to relegate low-status 
minorities to a subject role in society. 

POLITICAL EFFICACY AND TRUST 

The demands for increased citizen participation in the gov- 
ernment of large American cities are consistent not only with 
popular conceptions of democracy, but also with recent social 
science findings which strongly suggest that accession to these 
demands would reap large dividends to society as a whole, par- 
ticularly at the local level. The key findings of current thinking 
from political and social sciences are that the perception of per- 
sonal effectiveness in politics, or "political efficacy," is related 
to satisfaction with government and that a strong sense of politi- 
cal efficacy seems to be necessary to motivate persons to express 
their demands in conventional, nonviolent modes. 

Individuals who feel ineffective in using the conventional 
modes of political action are likely to seek alternative channels 
for the expression of needs. Lacking the opportunity to enjoy 
occasional success in the conventional channels of influence, they 
seek success through more militant channels. These channels may 
may in turn contribute to a sense of revolutionary effectiveness. 
Ultimately, the sense of effectiveness in using any mode of politi- 
cal expression depends on the degree of success which an indi- 
vidual experiences. 

Since society denies the legitimacy of violent channels of in- 
fluence, it must at the same time strengthen the conventional 
channels so as to promote the feeling that the system is being 
responsive to every conscious group of interests in the political 
system. The blockage of demands will not obliterate them, but 
rather "transform what might have been a pacific continuous 
flow of demands into a spasmodically violent, eruptive one." The 
tendency for demonstrations, mass rallies, and riots to be impor- 
tant channels for expressing and communicating demands will 
be strengthened if such blockage persists. 30 

"Channel blockage," or the perception of such obstacles to 
political expression, hinders the development of a sense of 
political efficacy the "belief that political and social change 
can be effected or retarded and that [one's] efforts, alone or in 
concert with others, can produce desired behavior on the 
part of political authorities." 31 The elderly, the poorly educated, 
and the depressed minorities, notably Negroes, are more likely 
to lack this important sense of political effectiveness. 

The feeling of political inefficacy particularly describes per- 
ceived isolation from the "input" channels to the political system. 



The Responsiveness of Local Government 123 

The related component of political alienation is cynicism, or 
lack of trust, the sense that the "outputs" or policies of govern- 
ment neglect the individual. The distinction becomes important 
because a recent study suggests that those who "participate" in 
unconventional fashions demonstrating and rioting share a 
strong cynicism, but that demonstration-prone individuals are 
more likely to have higher feelings of political efficacy than 
riot-prone individuals. 32 

These two aspects of the alienation syndrome are, of course, 
related to each other. In general, persons who have a high sense 
of political efficacy are less likely to be cynical about politicians 
and the political process. This relationship, however, does not 
hold where local politics are dominated by a political machine. 
In Litt's study of Boston, 33 where the legacy of past machine 
control is still sensed, no matter how efficacious persons felt 
about political action, they still did not trust politicians. On the 
other hand, Litt found the expected direct relationship between 
political trust and efficacy in surrounding Boston suburbs. Litt's 
findings thus suggest that a restoration of the urban political ma- 
chine would not reduce this sense of alienation. 

The citizen-bureaucrat interface is often a locus of critical 
political learning, or socialization, which can either promote 
or reduce feelings of alienation. Ronald Lippitt provides an 
everyday example of the unfortunate informal negation of a 
formal civics lesson : 

Socialization decision: The city council has before it a 
proposal from two of the council members to establish a 
city youth council which would have on it representatives 
from all youth-serving programs including agencies, school 
systems, churches, etc. It was also proposed that the chair- 
man of the youth council should sit ex officio on the city 
council as a linkage or liaison between "youth affairs" and 
"city affairs." After much wrangling and hassling, the idea 
was changed considerably to an invitation to all student 
councils and other youth groups to send representatives 
as observers to city council meetings to "learn how the city 
does its work" so that they could help the young people 
understand city affairs. 

Socialization action: A letter from the mayor went to all 
the grouDs were quite desultory, and the members se^mod 

Socialization consequences: The discussions in most of 
the groups were quite desultory, and the members seemed 
uninterested. In a few groups there were active discussions 
which usually focused on the theme "Who wants to sit and 
be an observer? Why don't they trust us to meet and think 
about what ought to be done to improve things like delin- 



124 Report of the Task Force on Law and Law Enforcement 

quency and drinking in town and to make recommendations 
to the city council for things that ought to be done?" Very 
few representatives turned up as observers at the council 
meetings. A few council members noted this circumstance 
and felt it confirmed their belief that "the young people 
aren't interested in this kind of thing." Others didn't even 
remember the invitation. 34 

That political attitudes are re-inforced or weakened by the 
quality of informal contacts with officials suggests that the 
selection, training, and promotion of local civil servants who deal 
with the public should give recognition to qualities of rapport and 
personableness. "Merit" is not just technical competence. 

The critical need to promote feelings of trust and self-con- 
fidence in approaching political institutions and personnel is 
tragically manifested in outbreaks of violence. Survey data on the 
sense of political efficacy collected by the Survey Research Center 
since 1952 show a disturbing trend since I960. 35 

Political Efficacy 

[In percent] 

1. People like me don't have any say about what the government does. 

1952 1956 1960 1964 1966 1968 

Agree 31 28 27 29 34 35 

Disagree _ 68 71 72 70 60 63 

DK (depends) 111162 

100 100 100 100 100 100 

2. Voting is the only way that people like me can have a say about how 
the government runs things. 

1952 1956 1960 1964 1966 1968 
Agree 81 73 73 73 69 55 

Disagree 17 25 25 26 26 43 

DK (depends) _ 222152 

100 100 100 100 100 100 

3. Sometimes politics and government seem so complicated that a person 
like me can't really understand what's goiii^ on. 

1952 1956 1960 1964 1966 1968 

Agree 71 64 59 67 70 67 

Disagree . 28 36 41 32 26 30 

DK (depends) 1 * * 1 4 3 

100 100 100 100 100 100 

4. I don't think public officials care much what people like me think. 

1952 1956 1960 1964 1966 1968 

Agree 35 27 25 37 35 43 

Disagree ___ 63 71 73 61 56 50 

DK (depends) 222297 

100 100 100 100 100 100 

Source: Survey Research Center; 1968 data from the Harris poll pre- 
pared for the Violence Commission. 



The Responsiveness of Local Government 125 

Particularly distressing is the trend of responses to the ques- 
tion, "I don't think public officials care much what people like me 
think" (item 4). Since about 1960, an increasing number of 
respondents have agreed with that statement, indicating a 
particular source of the feeling of isolation from government. A 
perhaps encouraging countertrend is the growing feeling that 
there are alternatives to voting for the expression of individual 
sentiments (question two). The data do not allow a determina- 
tion, however, of which alternative channels of communication 
the respondents had in mind conventional letter writing, or 
non-conventional protest such as demonstrations, even violence. 
Robinson, Rusk, and Head at SRC concluded on the basis of these 
and related data that "common conditions or events could be said 
to be causing people to be less trustful of the government (or 
how it is run) and also less sure of their own effectiveness in 
influencing the course of governmental actions." 36 They add 
that the manifestations of these feelings of political cynicism and 
inefficacy on the part of large segments could be either with- 
drawal from the political system entirely or revolt against it. 
In either case, domocracy would be the loser. 37 

EFFICACY, TRUST AND CITIZEN PARTICIPATION 

The feelings of political efficacy and trust which contribute to 
political allegiance can be fostered by increasing the responsive- 
ness of local government. The alienation syndrome need not 
suggest a personal pathology, but rather a malfunctioning of 
the political system. It is important that the system institu- 
tionalize responsiveness by assuring free and open access to 
those political channels deemed legitimate and "proper" by the 
political culture. 38 

The "capillary" structure of democracy, to borrow an analogy 
from Almond and Verba, is a useful one if we do not press it 
too far. The great secondary components of the democratic in- 
frastructure political parties, interest groups, and the media 
of communication are analogous to the veins and arteries of a 
circulatory system. Unless they are connected effectively with the 
primary structure of community family, friendship, neighbor- 
hood, religious groups, work groups, and the like there can be 
no effective flow of individual impulses, needs, demands, and 
preferences from the individual and his primary groups into the 
political system. 

The overwhelming majority of the members of all political 
systems live out their lives, discover, develop, and express their 
feelings and aspirations in the intimate groups of the community. 
Where the primary structures remain outside the polity or are 



126 Report of the Task Force on Law and Law Enforcement 

passive objects of the polity rather than active participants 
within it, then the individual has only three choices: to fully 
involve himself in politics, withdraw from it, or become a passive 
object of it. 39 When there is an adequate development of secon- 
dary structures for the articulation and aggregation of political 
sentiments and needs, complaints and aspirations, the alternatives 
for the citizen are not so stark. Most people have other activities 
which keep them busy most of the time. But everyone, at one 
time or another, feels the need to express his feelings and to com- 
municate his needs to the political system, whereby the society as 
a whole makes binding allocations of values. 40 

Needless to say, expanded opportunity for participation will not 
by itself quell the sense of dissatisfaction which distresses our 
society. As Sidney Verba wrote in a recent analysis pertinent 
to the current crisis of participation, "Participation is not neces- 
sarily successful participation . . . [but] only [at least] occasion- 
ally successful participation is conductive to a feeling of satisfac- 
tion with one's political role as a citizen." 41 Additionally, oppor- 
tunities for participation must be salient to elicit a response, 
particularly among the young and self-aware minority group 
members, whose growing, but often untested, sense of self- 
assertion and competence tend to spill over into politics, giving 
rise to the sentiment of "We'd rather do it ourselves." These 
sentiments seek a positive response from the system for suste- 
nance and encouragement. 

As the American psychologist M. Brewster Smith has aptly 
put it : 

. . . the strategic factors of the social structure that gear 
into these . . . attitudes of hope and of self-respect are . . . 
opportunity, respect, and power. Opportunity corresponds 
to hope and provides its warrant. Respect by others more 
important in this regard than love or approval provides 
the social ground for respect of self. And power is the king- 
pin of the system. Power receives respect and guarantees 
access to opportunity. 

Smith adds a warning : "When opportunities are offered without 
a sharing of power, we have paternalism, which undercuts re- 
spect, accentuates dependence, and breeds a lurking resentment 
that the powerful are likely to condemn in righteousness as 
ingratitude." 42 In the place of conventional paternalism Smith 
recommends "good 'parentalism,' . . . [which] sees to it that 
the child has real problems and challenges to face, and that his 
solutions are his own." 43 This comment makes explicit the desir- 
ability, if not the necessity, of adaptation of leadership styles as 
well as channels of influence. 

Recalling the unintended consequences of municipal reform 



The Responsiveness of Local Government 127 

for the quality of governmental responsiveness to the lower 
classes, one is well advised to seek a balance between compe- 
tence and accountability in government, a distinction which corre- 
sponds to that made by Almond and Verba: "On the one hand, 
a democratic government must govern ; it must have power and 
leadership and make decisions. On the other hand, it must be 
responsible to citizens." 44 

CONCLUSION 

In spite of the points of explicit and implicit conflict between 
the two main movements for local government reform the 
inner city demands for greater citizen participation and devolu- 
tion of authority, and the metropolitan reform sentiments for 
greater consolidation and efficiency there is reason to believe in 
the possibility of balance between these goals. 

The urgent need is for experimentation in the spirit of a com- 
mon search for structural arrangements which will provide the 
context for increasing the citizen's sense of efficacy and satisfac- 
tion with his government, as well as a modified output of policies. 
Many such experiments are under way in the various Federally- 
assisted local programs such as Model Cities, Neighborhood 
Development Program, and the Community Action Program. 
The novelty of these and other adaptations of more familiar 
ways of running local governments has led to considerable debate 
and speculation about their utility, and it is still too early for 
a balanced assessment. 45 The search for new forms to increase 
both the competence and accountability of local governments is 
in the tradition of a nation which has adapted to considerable 
strains in the past and which will have to continue to do so in 
the future if local governments are to retain their legitimacy. 
Jack Dennis and David Easton have written : 

The racial crisis of the 1960's has vividly revealed that 
even though the prevalent white and Anglo-Saxon ideology 
has been built around melting-pot aspirations and even 
though this has mitigated against alternative ways of con- 
ceptualizing the American social context, the United States 
has been unable to escape the strife and turbulence of many 
other multi-ethnic societies. American ideology has failed 
to constrain American reality. This may ultimately force 
the United States to alter its political self-image radically 
so that it may begin to reinterpret itself for what it really 
is, a society composed of several large and residentially con- 
centrated ethnic groups black, Puerto Rican, Mexican 
American, American Indian, and others in tense juxtaposi- 
tion to the dominant white, English-speaking population. 46 



128 Report of the Task Force on Law and Law Enforcement 

Now that demands have been made for recognition of the 
legitimacy of some degree of community control in these minority 
communities, the responsibility lies with the dominant white 
group, itself composed of many separate but related identities, to 
respond. Our citizens expect a dynamic balance between the twin 
goals of governmental competence and political accountability, 
and such a balance is thus essential to the strengthening of that 
legitimacy of government by which law enforcement can be pri- 
marily voluntary rather than coercive. 

REFERENCES 

1. See text accompanying note 31, infra. 

2. Gabriel Almond and G. Bingham Powell, Jr., Comparative Politics: 
A Development Approach (Boston, Mass.: Little, Brown, 1966), at 
201. And see the discussion in Chapter 1 of this Report. 

3. Robert L. Lineberry and Edmund P. Fowler, "Reformers and Public 
Politics in American Cities," in City Politics and Public Policy, ed. by 
James Q. Wilson (New York: John Wiley & Sons, 1968), at 109. 

4. Edward C. Banfield and James Q. Wilson, City Politics (New York: 
Vintage Books, 1963), at 139-140. 

5. "Foreward to the Second Edition: Gosnell's Chicago Revisited via 
Lindsay's New York," in Machine Politics: Chicago Model, 2d edition, 
ed. by Harold F. Gosnell (Chicago: University of Chicago Press, 1968), 
at x. 

6. Id. at x-xi. 

7. Id. at xiii. 

8. Banfield & Wilson, supra note 4, at 140. 

9. J. David Greenstone and Paul E. Peterson, "Reformers, Machines, 
and the War on Poverty," in Wilson, supra note 3, at 270. 

10. Id. 

11. Robert C. Wood, Suburbia: Its People and Their Politics (Boston: 
Hough ton Mifflin, 1959). 

12. Sumner M. Rosen, "Better Mousetraps: Reflections on Economic De- 
velopment in the Ghetto," Social Policy Papers, No. 1, July 1968, at 2. 

13. Adam Yarmolinsky in On Fighting Poverty: Perspectives from Experi- 
ences, Vol. II, Perspectives in Poverty Series, ed. by James L. Sunquist 
(New York: Basic Books, 1969), at 34-51. 

14. Among the many specific articulations of this demand by blacks for 
greater participation, see in particular Charles Hamilton, in Harvard 
Educational Review, Fall 1968, at 669-685, which treates the necessity 
of school decentralization as a prerequisite for restoring the ligitimacy 
of educational authority. 

15. Modernizing Local Government, A Statement on National Policy by 
the Research and Policy Committee for Economic Development, (July 
1966), at 11-13, as paraphrased in the National Commission on Urban 
Problems (hereinafter cited as Douglas Commission Report), Building 
the American City (Washington, D.C. : Government Printing Office, 
1969), at 326. 

16. Id. 

17. Id. at 323. 

18. Id. at 330. 

19. Henry Maddick, Democracy, Decentralization and Development 
(London: Asia Publishing House, 1963), at 23. 



The Responsiveness of Local Government 129 

20. Id. 

21. Douglas Commission Report, supra note 14. This includes a Majority 
Report and Minority Report, the latter expressing the Chairman's views 
and that of four other Commissioners as stated in the "Supplementary 
Views on Community Advisory Boards," Part IV, Chapter 2, of the 
main report. This majority /minority distinction pertains only to this 
chapter and is used here for clarification of views. 

22. Id. at 351. 

23. Id. at 352. 

24. Id. at 351. 

25. Id. 

26. Id. 

27. Id. at 352. 

28. Id. at 352-353. 

29. Id. at 354. 

30. David Easton, A Systems Analysis of Political Life (New York: 
John Wiley & Sons, 1965), at 122. 

31. Kenneth Prewitt, "Political Efficacy," 9 International Encyclopedia of 
Social Sciences 225 (1966-67). 

32. Everett F. Cataldo, Richard M. Johnson, and Lyman A. Kellstedt, 
"The Urban Poor and Community Action in Buffalo," paper prepared 
for delivery at the annual meeting of the Midwest Political Science 
Association, Chicago, 111., May 2-3, 1968, which reported preliminary 
research findings. Final report to OEO entitled "Change Processes and 
Political Behavior in the Urban Community" is forthcoming. 

33. Edgar Litt, "Political Cynicism and Political Futility," 25 The Journal 
of Politics 312-323 (1963). 

34. Ronald Lippitt, "Improving the Socialization Process," in Socializa- 
tion and Society, ed. by John Clausen (Boston: Little, Brown, 1968), 
at 332-333. 

35. John P. Robinson, Jerrold G. Rusk, and Kendra B. Head, Measures 
of Political Attitudes (Ann Arbor, Michigan: Survey Research Center, 
Institute for Social Research, University of Michigan, 1968). Tables 
and graph are adapted from the SRC data plus data from the National 
Violence Commission Survey, Nov. 1968). 

36. Id. at 633. 

37. Id. at 334. 

38. For an elaboration of the concept of political culture, see Gabriel 
Almond and Sidney Verba, The Civic Culture (Princeton, N.J. : Princt- 
ton University Press, 1963). 

39. Id. at 143-144. 

40. Easton, supra note 30, at 122. 

41. Sidney Verba, "Democratic Participation," 373 Annals 53 (1967). 

42. M. Brewster Smith, "Competence and Socialization" in Clausen, supra 
note 34, at 313. 

43. Id. at 315. 

44. Almond and Verba, supra note 38, at 476. 

45. The Urban Institute is sponsoring a series of studies on the topic 
of citizen participation, under the direction of Alan Altschuler of MIT 
and David Cohen of Harvard School of Education. 

46. Jack Dennis and David Easton, Children in the Political System: 
Origins of Political Legitimacy (New York: McGraw-Hill, 1969), at 
407. 



CHAPTER 7 

THE ELECTORAL PROCESS AND 
THE PUBLIC WILL* 



The legitimacy of our system of government rests upon the 
people's belief that its institutions respond to their needs and 
represent their views. If the people lack confidence in the elec- 
toral system or if they feel excluded from decision-making proc- 
esses and helplessly depend on the discretion of governmental 
and quasi-governmental officials, the legitimacy of the system 
stands almost certainly in serious question, making for politi- 
cal alienation in America. Can defects in the national electoral 
process convention campaign, and election-which may give 
rise to disaffection from the political system, be remedied ? 

THE NATIONAL NOMINATING CONVENTION 

Since the Civil War, only two political parties, the Demo- 
cratic and the Republican, have continued to compete for the 
control of the American Presidency and the Congress. Although 
a multiplicity of "third" party movements have frequently 
nominated candidates for the Presidency, none has succeeded 
or endured. 

Changing public attitudes have brought national nominating 
convention procedures into question and have even damaged 
the legitimacy of nominations. Two developments in particular 
have disenchanted the public with recent conventions. First, 
much of the electorate has the exaggerated notion that deci- 
sions regarding nominees and issues result from their expressed 
preconvention public preferences. Second, through television the 
public can intimately witness, in a fashion never before possible, 
the actual machinery and the full trappings of the national con- 
vention, revealing to the voter his own impotence. 

More and more the convention appears merely to register the 

*This chapter was prepared by Judith Toth of Washington, D.C. based 
in part on research papers on campaign finances contributed by Dr. Herbert 
E. Alexander, Director, Citizens Research Foundation, Princeton, N.J., and 
on nominating conventions contributed by Prof. Marvin G. Weinbaum, 
Department of Political Science, University of Illinois. 

131 



132 Report of the Task Force on Law and Law Enforcement 

previously expressed wishes of select constituencies, as the in- 
creasing incidence of first ballot nominations plainly suggests. 
Whether or not that constituency composes the masses of 
party adherents, or merely the professional party cadre, how- 
ever, stands challenged. No one can say with certainty that 
Richard Nixon, rather than Nelson Rockefeller, represented 
the choice of the relevant body of voters who in 1968 consti- 
tuted or would have constituted the Republican Party, or that 
Hubert Humphrey rather than Eugene McCarthy represented 
the Democratic choice. 1 

In the past, party leaders, acting with only a casual eye to 
the electorate, could bargain among themselves in selecting a 
presidential nominee. Although they seldom chose a man wholly 
unknown to the public, they had little reason to fear grass- 
roots dissent. By contrast, today's conventions attend to mass 
appeal; a candidate who fails to demonstrate at least potential 
popular strength probably will not receive serious considera- 
tion. Party professionals cannot easily dismiss aspirants with 
proven ability to mobilize voters when only few regular organi- 
zations today can deliver large blocs of voters in primaries or 
general elections. 

Contenders for the nomination have little choice but to carry 
their case to the people, especially if their ability to win at the 
convention hangs in doubt. In their appeals to the electorate, 
contenders work hard to convey the impression that each ex- 
pression of public sentiment helps decide their candidacy. 
Throughout the preconvention campaign, the voter believes that 
the professionals are watching and that his preferences will 
not be ignored. 

The polling industry shares responsibility for the public's 
belief in its own preconvention role. Surveys of opinion that 
add to the credibility or embarrassment of contenders also 
serve to cultivate the public's consciousness of its own voice. 
They also lead logically to the conclusion of the electorate that 
it has responsible, worthwhile opinions on candidates and issues. 

In its televised proceedings, paradoxically, the convention 
seems both overly conscious and strangely oblivious of its na- 
tional audience. It projects much that is either florid showman- 
ship or tedious party ritual. More significantly, the proceedings of 
the convention may strike the viewing audience as largely irrel- 
evant the convention has not assembled to ratify decisions 
made in the electorate, nor has it come to weigh the qualifica- 
tions of the contenders or deliberate on the issues that divide 
the party. Too often the public feels itself an intruder, an un- 
welcome witness to the party's private business and family 
quarrels. 



The Electoral Process and the Public Will 133 

The rhetoric of conventions can readily augment public dis- 
illusionment. Convention managers speak the praises of "open 
conventions," yet few delegates seem free. Only a handful of 
delegates stand bound to the instructions of primary electorates ; 
far more have committed themselves to follow their party su- 
periors. Although convention procedures seem democratic in 
form, to many in the television audience, presiding officers ap- 
pear to make arbitrary rulings, and speakers appear to be 
shouted down or denied access to microphones. Platform drafts- 
men pledge racial equality, while the convention seemingly 
condones racial biases in the selection of its own delegations. 

Doubt, therefore, naturally surfaces about the convention's 
positive contribution to the national parties. Even when the 
large majority of the delegates display the solidarity of the 
party, the mass media more often identify the sources of dis- 
unity. Contenders' attacks on the qualifications of rivals and 
their doubts over the sincerity of their party's platforms 
clearly register on an already skeptical public. Moreover, con- 
tenders find it difficult to negotiate and compromise when every- 
thing is being aired publicly by the news media. Finally, the 
convention goal to publicize its national nominees sometimes 
backfires when floor demonstrations for the candidates readily 
prove counterfeit. It should, therefore, not surprise anyone that 
various polls in recent years suggest that from 60 to 70 per- 
cent of the American people want to scuttle the convention sys- 
tem as it now stands. 

This poll does not mean, however, that conventions have 
outworn their function in the national parties and in the politi- 
cal system, nor that the mass media will in time destroy the 
convention system. Indeed, television can be an effective ally 
of the convention, particularly in its capacity to project new 
faces and ideas, and to activate party loyalties across the na- 
tion. Still, a discrepancy prevails between what the public has 
been encouraged to expect of conventions and what it is likely 
to perceive. 

Accordingly, critics ask: "Is this cumbersome production 
really necessary to nominate a national slate?" A partial an- 
swer lies in the test of time: the convention has produced a 
very respectable line of Presidents and has helped hold to- 
gether two stable and competitive national parties. National 
conventions have endured, moreover, while similar nominating 
machinery has largely disappeared in most, if not all, of the 
states. National conventions have also functionally contributed 
to political parties at three levels : state or local party organiza- 
tions ; the national organization ; and the wider party system. 

State and local organizations have a distinctive stake in the 



134 Report of the Task Force on Law and Law Enforcement 

convention's survival, and the needs of individual delegations 
have been placed ahead of the national party's objectives. Next 
to the central purpose of agreeing on a Presidential nominee, 
the demands that state parties have on the convention system, 
such as granting recognition to loyal party workers, may seem 
peripheral, even trivial. But without the sustenance and satis- 
faction of its constituent units, the national party's existence 
wavers precariously. 

The national parties have considerable stakes in the two- 
convention system. As V. O. Key, a respected student of Ameri- 
can parties, wrote: "The national convention is at the heart of 
the national party system. Without it, or some equivalent insti- 
tution, party government for the nation as a whole could 
scarcely exist." 2 The convention allows a feudal party to pull 
together and assert its national status. It assembles the party's 
barons and gives them a few short days to fall behind a single 
candidate and platform for the Presidential campaign. Fac- 
tions and interests must put aside their very real differences 
and an impressive achievement reach common and binding 
decisions. The modern successful convention also allows the 
party to carry its standards effectively to a mass electorate, 
to rally the party's workers, and to stimulate its financial con- 
tributors. Never again in the course of the campaign will the 
party be able to monopolize the public's attention to the same 
extent. 

Although the key to the longevity of the convention system 
may be its willingness to accept without challenge the auton- 
omy of the party's units, the convention's power to set its own 
rules and, in particular, to judge the credentials of its delega- 
tions can have far-reaching effects on the practices and dis- 
tribution of power in the state and local parties. That conven- 
tions may increasingly exercise this influence is suggested by 
decisions made at the 1964 and 1968 Democratic conventions 
such as those dealing with racial bias, party disloyalty, and 
the unit rule. These decisions go beyond the traditionally expe- 
dient functions of conventions. Only a party in its corporate 
capacity, as at its national convention, may force such change. 

The national conventions have also left an impression on the 
party system and our brand of electoral politics. For more 
than 130 years the convention system has furnished an orderly 
method for screening candidates for the Presidency. By com- 
parison with its predecessor, the congressional caucus, the con- 
vention broadened the avenues of recruitment to the Presi- 
dency. More often than not, the convention has helped to build 
confidence in our electoral system. By offering a vivid illustra- 
tion of the kind of integration that operates on a larger scale 



The Electoral Process and the Public Will 135 

in a pluralistic nation, conventions, at their best, symbolize 
our political processes. The compromises of the convention un- 
derline the limited objectives and the moderate character of 
our electoral politics. 

Despite these substantial virtues of conventions, critics still 
call for reform of the presidential nominating process. As V. 0. 
Key has stated: "Through the history of American nominating 
practices runs a persistent attempt to make feasible popular 
participation in nominations and thereby to limit or to destroy 
the power of party oligarchs." 3 

For 42 years of our Nation's early history, years which wit- 
nessed 11 major Presidential elections, the members of the 
Senate and House meeting in party caucus selected candidates 
for the Presidency. Throughout those years, the caucus was 
consistently attacked as an aristocratic barrier to popular par- 
ticipation in the choice of the party's candidates. 4 The Daily 
National Intelligencer on December 5, 1823, colorfully described 
the caucus : 

A caucus ! A nocturnal assembly convoked at short notice, 
after long preparation, bound by no rule, acting without 
authority, without the obligation of an oath, within the 
immediate reach of every sort of influence, calculated, if 
exerted to mislead, to deceive, or to corrupt, guarding the 
people of these United States from the mischief threat- 
ened by their own Constitution ! 5 

The nominating convention, modeled after state constitu- 
tional conventions, answered to democratic demands for open- 
ing up the nominating process. In 1832, a national convention 
met to select Martin Van Buren as the running mate of Presi- 
dent Andrew Jackson. By the time of the Civil War, the con- 
vention system had assumed substantially its present form. 

The expanding democratic instinct did not seem entirely sat- 
isfied with the convention system, however, since party elites 
demonstrated quite early a remarkable capacity to adopt their 
ways to the new forms. 6 Consequently, in the 1840's, an alter- 
nate method of nomination appeared in some states the choice 
of candidates for office through direct primary elections. By the 
end of the century, this new method had superseded the con- 
vention system in many localities. 

The shift from conventions toward primary elections on the 
state level, and toward the election of delegates to Presiden- 
tial nominating conventions, represented an effort on the part 
of Progressive and Populist reformers to circumvent the con- 
centrated political power of party machines. The concentration 
of political authority predominated especially in the nation's 



136 Report of the Task Force on Law and Law Enforcement 

rapidly expanding urban areas, swelled by immigrants from 
the farms and from Europe seeking to take advantage of 
America's industrialization. 7 As city budgets grew and the 
patronage system matured, enormous resources concentrated 
in the hands of the urban political machines. Although the ma- 
chines could exercise considerable influence at the election 
stage, it also had to have control of the nomination stage: As 
Boss Tweed put it, "I don't care who does the electing, just so 
I can do the Nominating." 8 

For the reformers, the direct primary became the instru- 
ment by which to pull down the old party apparatus. The di- 
rect primary, when accompanied by such other practices of 
"direct democracy" as the initiative, referendum, and recall, 
would invest the popular will with the power to distribute na- 
tional wealth more equitably, to regulate public utilities, and 
to attack the trusts. The ultimate faith of the Populists and 
Progressives lay in their belief in an essentially rational and 
virtuous electorate. The electorate, they believed, was deceived 
by the political parties. Through decentralization of the party's 
apparatus, they hoped to reacquaint the common man with his 
political responsibilities. A local and simpler politics would al- 
low citizens to reestablish control over the party, ending the 
party hierarchy's vital hold over the selection of delegates to 
attend party conventions. 9 

During the first 15 years of this century, the Progressives 
attempted to bring the national nominating conventions under 
popular control. Out of Robert La Follette's unsuccessful at- 
tempt to seat his Progressive Republican delegates at the 1904 
convention there developed Wisconsin's primary law providing 
for the direct election of convention delegates. 10 Further im- 
petus to the primary drive came in 1912 when Theodore Roose- 
velt charged that the Republican Convention had been "stolen" 
by the Taft forces. But the First World War and the subsequent 
conservative reaction brought pressures for election reforms to 
a virtual halt: from 1920 to 1949 only one state, Alabama, 
enacted presidential primary legislation, while 8 out of the 
original 26 presidential primary states repealed their statutes. 
Low voter participation, high cost of administration, and the 
ignoring of primaries by any leading national candidates, 
often contributed to the decline of the presidential primary. 11 

Not until 1944, when Wendell Wilkie attempted in the Wis- 
consin primary to demonstrate that he stood as the popular if 
not the professional party choice, did public attention again 
focus on the presidential primary. 12 Wilkie's crushing de- 
feat in Wisconsin eliminated him from contention, but his en- 
try pointed up the usefulness of the primary for testing public 



The Electoral Process and the Public Will 137 

appeal. Harold Stassen similarly challenged the old guard of 
the Republican Party in primary states in 1948, and Minne- 
sota, Indiana, and Montana subsequently enacted new primary 
laws. But disaffection among party leaders, regulars, and lib- 
erals resulted in the repeal for a second time of the primary 
laws in both Minnesota and Montana. When Minnesota Demo- 
crats found themselves, because of Estes Kefauver's caputre 
of the state's primary, unable to send either Senator Hubert 
Humphrey or Governor Orville Freeman as delegates to the 
1956 convention, the state legislature quickly repealed the 
law. 13 

Although presidential primaries have not occurred in recent 
years in more than one-third of the states, they have had on 
certain occasions a very profound impact on the committed 
and uncommitted delegates. As John Kennedy's successes in 
Wisconsin and West Virginia demonstrated, the primaries have 
enabled candidates to gain national exposure and to demon- 
strate voter appeal, appeal without which they would have little 
standing at the convention. All the same, the candidacy of Estes 
Kefauver, as well as that of Taft and Stassen, demonstrated 
that primary victories do not necessarily secure a nomination. 
Nor, on the other hand, has a record of primary defeats always 
eliminated a contender. 



Of the various suggestions that have been made for outright 
elimination of the convention, the national primary has tended 
to dominate every recent discussion of possible change. The 
late Senator William Langer (R-N.Dak.) proposed that each 
party should hold a nationwide primary on a given day. The 
choice would be among all those who filed a petition signed by 
one percent of the party's national membership. The candidate 
with the highest number of votes would become the nominee. 
A less drastic proposal put forward by Senator George Smathers 
(D-Fla.) also provides for a national primary but each can- 
didate would receive "nominating votes" each state having 
the same number of nominating votes as electoral college votes 
-and nomination would require a majority of the national 
total of such nominating votes. If no one received a majority, 
a runoff primary would decide. 

Before and since these two proposals, others have variously 
suggested doing away with the nominating convention osten- 
sibly to assure that the party nominee become the direct choice 



138 Report of the Task Force on Law and Law Enforcement 

of the people. The most common proposal today suggests a di- 
rect national presidential primary with a run-off in the event 
no candidate receives a majority of the party's votes. 

The major arguments in favor of a single national presiden- 
tial primary summarize this way: 14 In the first place, such a 
primary, where the candidates and their ideas display them- 
selves and contend openly for their party's nomination, would 
remove widespread public doubts as to the legitimacy of the 
present nominating system and would pave the way for broad- 
ening participation in and strengthening the democratic proc- 
ess. A national primary would inhibit or eliminate aspects of 
the system which lend themselves to political manipulation, and 
it would do away with the strategies which would confuse the 
party's rank and file. Moreover, because it would lessen the in- 
fluence of party leaders, the national primary would make it 
possible for more well-qualified and highly respected men to 
seek their party's nomination, leading to selection of better 
candidates for the nation's highest office. 

Secondly, a national primary would extend the two-party 
system by encouraging the development of truly national par- 
ties with substantial strength in all sections of the nation. It 
would probably deemphasize the importance of selecting nomi- 
nees from the more populous states with their large blocs of 
electoral votes, and it would inhibit the tendency toward appeals 
to particular segments of the population which have had an 
adverse affect on party unity. Thirdly, a national primary 
would reduce the physical and emotional burden on candiates 
for the nominations. As presently conducted, the state primaries 
devour the time, money, and energy of the candidates. 

A number of arguments prevail against the national presi- 
dential primary. One, because the structure of the parties re- 
flects the fundamental political conditions of the country as a 
whole, the existing system serves not only as a technical de- 
vice for choosing the candidate, but also as a forum which 
best accommodates all varieties of local opinion in a particular 
election year. The present, combination of state primaries and 
party conventions, separated in time, along with balloting in 
the national conventions, provides the flexibility required to 
sort out choices among multiple candidacies and come up with 
the most-favored candidate; it also brings forth candidates 
whose views concur with party principles, traditions and politi- 
cal needs. Moreover, campaigning nationwide for the primary, 
the run-off when required, and subsequently the general elec- 
tion would cost too much. Under the present system, a man of 
more modest means can enter a state primary and, if he wins, 



The Electoral Process and the Public Will 139 

he can develop the necessary organizational and financial sup- 
port as he moves toward the national party convention. 

So much for a national primary. But what about the existing 
convention system and the reforms recently proposed and, to 
some degree, implemented in convention procedures. 

Although the Constitution has been held to require that vot- 
ing in the primary of a political party is a right which cannot 
be denied on the grounds of racial discrimination, it remains 
true that in some parts of the country, principally but not 
exclusively in the states of the Deep South, Negroes still do not 
have a chance to participate equally in party affairs. The ex- 
clusion, or underrepresentation, of Negroes in state delegations 
to national conventions of recent years still shocks the demo- 
cratic conscience. 

The Democratic Party, profoundly affected by this problem, 
has taken steps to deal with it. In 1964, the Convention, al- 
though it agreed to seat the regular delegation from Missis- 
sippi despite that state's systematic exclusion of significant 
segments of the population from full participation in choosing 
delegates to the Convention, nevertheless instructed the Demo- 
cratic National Committee to include in its Call to the 1968 
Convention the following provision : 

It is the understanding that a State Democratic Party, 
in selecting and certifying delegates to the Democratic 
National Convention, thereby undertakes to assure that vot- 
ers in the states, regardless of race, color, creed or national 
origin, will have the opportunity to participate fully in 
party affairs. . . , 15 

In addition, the 1964 Convention directed the establishment of 
a Special Equal Rights Committee to make sure that state par- 
ties complied with the new requirement. Subsequently, the 1968 
Democratic Convention rejected the Mississippi delegation on 
the grounds that it excluded Negroes from participation and 
thus reaffirmed its 1964 mandate of achieving voter participa- 
tion in party affairs "without regard to race, color, creed, or 
national origin/' 16 

Also the 1968 Convention dealt with the problem of a delega- 
tion from Georgia picked by the two top state party officials, 
by confining the handpicked delegation to half the convention 
seats, and by allocating the remaining seats to the group led 
by Julian Bond. As to the future, the Convention took steps 
to insure a far greater representation in selecting Convention 
delegates, by establishing a Special Committee to study the 
delegate selection processes in effect in the various states and 
to recommend improvements in order to promote broader 



140 Report of the Task Force on Law and Law Enforcement 

citizen participation. The Special Committee will make its re- 
port to the 1972 Convention. Also, the Call for the 1972 Conven- 
tion will contain the following language : 

It is understood that a state Democratic Party, in select- 
ing and certifying delegates to the National Convention, 
thereby undertakes to assure that such delegates have been 
selected through a process in which all Democratic voters 
have had full and timely opportunity to participate. 17 

The election of delegates by direct primary offers an excel- 
lent way to open up the nominating process to greater public 
participation. The Florida primary law, for example, provides 
that delegates may run only as a slate, but that the statewide 
vote controls the election of delegates at large, and that the 
district vote controls delegates running in the districts. Each 
slate may run either unpledged or under the name of its pre- 
ferred Presidential candidate, which then also appears on the 
ballot. It does not require the formal consent of the candidate. 
If more than one slate files, preferring the same candidate, the 
candidate may choose which slate he wishes to represent him. 
This arrangement produces a valid mandate, and yet leaves 
open the possibility of drafts. One disadvantage obtains, how- 
ever: those who vote for slates pledged to losing candidates 
may feel unrepresented at the convention itself. 

The New York primary, on the other hand, directly elects indi- 
vidual district candidates, who run unpledged, although they 
may advertise their preferences as they choose. Candidates do 
not run on statewide slates, so that any prospective Presiden- 
tial nominee can find some support within the selected delega- 
tion. The party organization chooses delegates at large. Under 
this system, the voter has approximately the same opportunity 
for seeing his preference expressed at the national convention 
as he enjoys in electing members of the state legislature. 

Some proposals have suggested combining the present con- 
vention system with a national system of state primaries. Sen- 
ator Estes Kefauver proposed direct primary elections in each 
state, at which time a slate of pledged electors would be chosen. 
Subsequently, at the national convention, each delegation would 
continue voting for the pledged candidate so long as he re- 
ceived at least 10 percent of the total vote. If no candidate 
received a majority on the first ballot, and no candidate could 
gather enough additional votes from those not committed by 
the 10-percent provision, then the convention would choose 
among the three highest ranking contenders. In Senator Paul 
Douglas* variation, federal grants-in-aid would finance primar- 
ies in states which choose to hold them. Delegates so chosen 



The Electoral Process and the Public Will 141 

would have to vote for the winner of their state's preferential 
poll unless, or until, he received fewer than 10 percent of the 
total votes. 

Criticism has also centered on internal convention proce- 
dures or rules which tend to prevent delegate voting patterns 
from reflecting the views of their constituencies. The most 
offensive prescription has been the so-called "unit rule/' by 
which the national convention would honor the requirement, 
adopted by a state delegation, that the entire vote of the state 
reject the wishes of the majority of the state's delegation. 
Thus, a majority in a unit-rule state could exercise more weight 
than a comparable majority in a state operating without the 
unit rule. Since the Republican Party has specifically banned the 
binding of any delegation to its Convention by unit rule, only 
in the Democratic Convention the rule applied. In 1968, nine 
delegations went to the Chicago Convention bound by the unit 
rule, with several others free to invoke the rule if they so chose. 

In 1968, debate over the future of the unit rule occupied 
much of the time of the Democratic Committee on Credentials, 
the Committee on Rules, and the Convention itself. On the rec- 
ommendation of the Committee on Credentials, the Convention 
approved a report stating : 

While it is indispensable to democratic processes that there 
come a time when a final decision must be reached by 
majority vote, a necessary consequence of the Unit Rule 
is the submergence of minority views and representation. 
The new [so-called "Special"] Committee should examine 
this question. 18 

The Convention also specifically provided that, as to delegates 
to the 1972 Convention, "the unit rule [shall] not be used in 
any stage of the delegate selection process." 

But if the unit rule goes, the spirit of the unit rule lingers 
on in some quarters. Observers at the 1968 Democratic Con- 
vention noted that even in some delegations not bound by any 
unit rule, the leader of the delegation would frequently vote 
all of the state's votes according to his own preferences unless 
the dissenting delegates specifically asked that their votes be 
cast a different way. Those who remained silent saw their votes 
announced without their ever having been consulted. 

Internal convention practices might be considerably improved 
in other ways. Some have described the atmosphere of most 
national conventions as "confusion, childish horseplay, and ir- 
rationality not conducive to calm deliberation on party princi- 
ples, programs and men." 19 On occasion, convention chairmen 
have misued parliamentary procedure to prevent the counting 



142 Report of the Task Force on Law and Law Enforcement 

of dissenting votes or the expression of dissenting opinions. 
Galleries, packed to create a false impression of popularity for 
a particular candidate or for the head of the host state dele- 
gation, create greatly false impressions. 

The parties themselves must improve the internal procedures 
of the conventions. Presumably, party leaders have become 
sensitive to the increasing disfavor with which the public 
greets arbitrary chairmanship and the stifling of debate. 
Lengthy parades and irrelevant speeches have no adequate jus- 
tification today, when millions watch convention proceedings 
on television. No one can justify or excuse attempts by party 
"leaders" to exclude representatives of certain segments of the 
party from access to microphones, or to shout them down dur- 
ing speeches. 

Awareness of the public presence has become a giant first 
step toward reform. Hopefully, the reforms of the 1960's will 
be dwarfed by those which will be adopted in the 1970's in 
order to preserve the convention system. 

THE POLITICAL CAMPAIGN 

Americans are now more numerous, younger, more suburban, 
better educated and wealthier than ever before. They are also 
more mobile and less parochial. Over this kind of constituency, 
political organization can not hope for unquestioning loyalty. As it 
is, the number of voters who register as "independents" in- 
creases. These people will have to be wooed by the candidates 
with the help of polls, computers, mass mailings, television, 
and other means from modern technology. One observer has 
written : 

New campaign techniques as practiced by professional 
managers win elections. The traditional party organiza- 
tions can no longer win elections when opposed by these 
new managers and techniques. Some have been slower to 
learn this than others and have paid in defeat at the 
polls. 20 

The new techniques require large sums of money, and a 
growing belief exists in this country that a small group of 
people, who by reason of money, position and power, control 
the present government and have the ability to maintain that 
control in the future, regardless of the wishes or needs of 
the people. That this kind of notion could gain such wide- 
spread currency in a nation dedicated to the principle of a 
"government of the people, by the people, and for the people" 
is unfortunate, but how much does it cost to elect a candidate 



The Electoral Process and the Public Will 143 

and where, in fact, does the money come from? Is there, as 
some claim, an industrial-political complex? 

Money, of course, is one important factor among many af- 
fecting the outcome of elections. In politics, as with most other 
enterprises, there is no guarantee against waste and ineffi- 
ciency. The amount spent does not necessarily have any re- 
lationship to the caliber of the campaign or to the discussion 
of crucial issues. Campaign spending varies according to the 
availability of money, the nature of the contest, and the con- 
stituency to be reached. For example, a candidate may win be- 
cause he could spend more money, or he may have attracted 
more money because he looked like a winner. The more popular 
candidate attracts not only more votes but also more money. 

A certain amount of money spent in any competitive situa- 
tion gives the candidate's name prominence and ensures visi- 
bility, even to remind voters of the names of well-known in- 
cumbents. But beyond such minimal spending, ignorance pre- 
vails about the marginal increment per dollar or of the differ- 
ential effectiveness of various campaign techniques. But, ob- 
servers agree, money has greater impact in the prenomination 
period than in the general election period. 

Moreover, spending represents only one aspect of the broader 
issue of access to the electorate through the communications 
media. Sympathy on the part of those controlling the mass me- 
dia, or those possessing the skills for reaching the electorate, 
can play a significant part in the battle for men's votes. 

Concern about the larger political influence which some think 
the rich exercise, is not a new phenomenon. This concern cen- 
tered on the basic political divisions which brought forth our 
two major political parties, and the varying manifestations of 
this concern have continued since that time to illuminate, or 
to becloud, our political life. Lately, however, students of be- 
havioral psychology and of advertising techniques say that the 
decision-making process betrays no more rationality in the 
arena of politics than in other areas of human activity. Indeed, 
the outcome of democratic political contests, whether elections 
or legislative struggles, can be substantially influenced by the 
quantity and character of the appeals for public support, as well 
as by their inherent rationality. While people, not dollars, vote, 
dollars help to influence voter behavior. 

In 1952, about $140 million was spent on American politics at 
all levels. By 1964, the figure had risen to at least $200 mil- 
Ion; 1968, to about $300 million. National party organizations 
heavily depend upon large contributions defined as those of 
$500 or more to finance campaigns. Table 1 indicates the per- 
centage of individual contributions of $500 or more received 



144 Report of the Task Force on Law and Law Enforcement 

by the national level committees of the two major parties in 
recent years. 





1 
(In 


?able 1 
Percent) 








National level 
committees 


1948 


1952 


1956 


1960 


1964 


Democratic 


69 


63 


44 


59 


69 


Republican 


74 


69 


74 


58 


28 















The Republican achievement of 72 percent of income in 1964 
received in contributions of less than $500 represents the high- 
est percentage either party has attained in modern times, thanks 
largely to the Republican National Sustaining Fund, a tremen- 
dously successful $10-a-year membership program started in 
1962. The Democratic National Committee has likewise had a 
sustaining fund for more than a decade, but its success has 
been limited. 

In 1964, probably 12 million Americans gave money to some 
party or candidate, showing an increase of 9 million since 
1952. The 12 million donors in 1964 represent about 17 percent 
of the number of citizens who voted in the 1964 Presidential 
election. These data suggest that while a relatively large pro- 
portion of the resources available to national organizations 
generally stem from donors of more than $500, small contrib- 
utors especially Republicans have started to bear a greater 
share of the overall cost. 

The investment of the "financial elite" in politics has been 
extremely difficult to document. By contributing to different 
campaign committees supporting the same candidate, for ex- 
ample, effective tracing of an individual's contributions be- 
comes frustrated. Difficult to determine even with reasonable 
accuracy is the amount of the political contributions made by 
any person, group, association, or corporation. 

In 1964, about 10,000 persons made reported contributions in 
sums of $500 or more, for a total of $13.5 million. One hundred 
and thirty of these made reported gifts aggregating $10,000 or 
more for a total of $2,161,905, or 7 percent of the total. Of the 
130 very large donors, 52 gave to the Republican cause and 65 
to the Democratic, while 13 contributed to both. 

With the increasing complexity of government, combined with 
the affluence of the private sector of the American economy, the 
instances of wealthy contributors winning appointive office have 
become fewer. Of the first 27 noncareer Chiefs of Foreign Mis- 
sions appointed by President Kennedy, only 7 had made recorded 
contributions of $500 or more. Of some 35 similar appointments 
by President Johnson during 1964-65, only 10 went to large 



The Electoral Process and the Public Will 145 

contributors. Nor have major contributors accounted for a large 
percentage of the other, nondiplomatic major appointments in 
recent years. Of 253 major appointments made by President 
Kennedy through mid-1961, only 35, or 14 percent, were found 
to have contributed $500 or more in the 1960 campaign. Four 
of those 14 had actually given to the Republicans. Under Pres- 
ident Johnson, only 24 of 187 major appointees through Septem- 
ber 1965 had given $500 or more in the 1964 campaign. 

In 1956, the Gore Committee analyzed reported large gifts 
($500 or more to candidates and campaign committees from the 
lists of officers and directors of 13 trade associations and special 
interest groups. 21 A continuation of the analysis through the 
1960 and 1964 elections shows a decrease in giving by such indi- 
viduals. 22 In none of these Presidential election years did more 
than 15 percent of the officers and directors of these combined 
groups contribute not a much higher percentage than for the 
population as a whole. Admittedly, the percentages among the 
selected 13 groups become reduced considerably by the large 
number of noncontributors among the top leadership of such 
groups as the National Association of Real Estate Boards and the 
American Bar Association. (The ABA figures boggle, for mem- 
bers of a profession that consistently provides so many candidates 
for major public office; in 1964, among 267 members of the ABA 
House of Delegates, only 5 contributed an aggregate of $5,000.) 

The highest percentages of recorded contributors represent the 
membership of the Business Council, which has been called the 
elite of business and finance, the essence of the so-called "estab- 
lishment." Of the Business Council's membership, 53 percent 
were listed among large contributors in 1964, almost 60 percent 
in 1960, 45 percent in 1956 ; the aggregate amounts of contribu- 
tions from these men decreased between 1956 and 1964. The 
special circumstances of the 1964 campaign brought a much 
higher percentage of Business Council membership giving to the 
Democrats, whereas before the overwhelming bulk of the mem- 
ber's gifts had gone to Republican causes. 

If any group would seem to have special reasons for making 
significant contributions to the party in power, it would be per- 
sons associated with defense industries and receiving a large 
share of federal contracts. In part, the record of 1964 of those 
giving sums of $500 or more, would seem to bear out the assump- 
tion. Twenty-four percent of the directors and executives of the 
10 top defense contractors in fiscal year 1964 contributed as op- 
posed to 13 percent for the entire group of trade associations 
and special interest groups listed above. But the amount of the 
contributions was not high. 



146 Report of the Task Force on Law and Law Enforcement 



Year 


Number 
members 


Number 
contributors 


Number of contributors and 
amount of contribution 
Republican Democrat 


1964 


136 


33 


23;$45,250 15;$32,000 



Moreover, in a year when the Democrats had been expected to 
retain the White House with ease, the officials of these defense 
contracting firms still gave more money to the Republicans. 23 

Another indication that men of wealth do not seek unduly to 
influence politicians is the absence on reporting rolls of persons 
hedging their bets by buying stakes in the campaigns of opposing 
candidates. On the national level, the number of individuals 
giving both to Republican and Democratic causes over the past 
several years has not been great. The list of those who gave to 
candidates competing for the same office or to committees op- 
erating at the same level is still smaller. The most common 
instance of split ticket giving occurs when one gives to the 
Presidential candidate of one party and to a Senate or House 
candidate of another party. These "split contributors" simply 
do the financial equivalent of splitting their tickets ; they do not 
necessarily seek to maximize political influence by purchasing 
the favor of both sides. 

What about wealthy candidates? Only a wealthy person, it is 
said, can run for high political office. Recent experience in Pres- 
idential elections does not support that view. Franklin D. Roose- 
velt, Dwight D. Eisenhower, John F, Kennedy, and Lyndon B. 
Johnson had wealth, yet only in Kennedy's case did it seem 
demonstrably decisive. Two losers, Adlai E. Stevenson and Barry 
Goldwater, both considered wealthy, do not demonstrate that 
their wealth had anything to do with their getting the nomina- 
tion or losing the subsequent election. Their wealth may have 
had more to do with their entering politics in the first place. 
Harry Truman, Thomas Dewey, and Richard Nixon (in 1960) 
were not even moderately wealthy when they ran for President. 
Yet money can create sudden availability, as it did, of course, for 
John F. Kennedy in 1960, for Nelson Rockefeller in 1964 and 
1968, and for Robert F. Kennedy in 1968. 

Political managers often complain that it takes more money 
to publicize an unknown. They may be tempted to give nomina- 
tions to men able to finance their own campaigns, in order to 
free party funds for other campaigns at other levels. Men less 
well endowed ordinarily start at lower elective levels and earn 
their way upward more slowly-except perhaps for certain other 
highly visible individuals, such as movie actors. Once in office, 
the wealthy incumbent has a freedom of action that others less 
wealthy do not have if they depend on political contributions for 
their funds. 



The Electoral Process and the Public Will 147 

Big money seems to exercise its greatest influence at the pre- 
nomination stage of the electoral process, when access to large 
numbers of small contributors becomes ordinarily less available 
than in the general election. The best estimates of costs of the 
preconvention Republican campaigns in 1964, for example, are 
as follows : 24 

Goldwater At least $5.5 million 

Rockefeller Between $3.5 and $5 million 

Scranton $827,000 

Lodge Over $100,000 

Nixon . Over $71,800 

Conversely, the McCarthy movement in 1968 represents a 
major candidacy that basically did not depend upon large con- 
tributions. Starting as a "policy campaign," is turned into a 
full-fledged nomination campaign, managing from primary to 
primary to find the financial means to carry on. The financing 
came from a relatively large number of small contributors, a 
smaller number than in the Goldwater prenomination campaign 
of 1964 ; 25 it demonstrated that a left-of -center candidacy could 
also be financed from a broad base. Although the McCarthy cam- 
paign had several very large contributors, it nevertheless stands 
as a remarkable phenomenon in the nature of its financial con- 
stituency. 

Personal wealth or access to the financial resources of others 
also acts as a screening device at other levels in the electoral 
process. Sometimes these screens are legally established. For 
example, in recent years, the Democratic Party of South Carolina 
has assessed up to $2,000 as a qualifying fee for candidates for 
Governor and U.S. Senator in the primary elections. In Indiana 
in 1964, before a candidate's name could be placed before the 
Democratic State Convention, he had to pay a filing fee to the 
party, ranging from $2,500 to $750 for statewide offices, $2,000 
to $750 for certain judicial offices, and down to $250 for delegates 
and 100 for alternates to the Democratic National Convention. 
High filing fees are not uncommon in other states. 

Moreover, a study conducted by the Citizens' Research Founda- 
tion of 1964 Democratic and Republican national convention 
delegates indicates that money can determine who may partici- 
pate in this phase of the presidential nomination process. The 
median family income for Democratic delegates was $18,223, 
compared with the national median family income of $5,742 for 
1964; for Republican delegates the median was slightly higher, 
$20,192. 26 

Existing federal and state laws relating to political finance are 
essentially negative in character, containing numerous prohibi- 
tions, limitations, and restrictions. Existing statutes seek to 
restrict both the sources of campaign contributions and the ex- 



148 Report of the Task Force on Law and Law Enforcement 

penditures by candidates. The federal government and about 30 
states forbid corporations to make contributions in connection 
with any election to a national office (U.S. Code, Title 18, S. 610). 
Similarly, statutes prohibit labor unions from making contribu- 
tions or expenditures in connection with elections (or nomina- 
tions) for federal office (Taft-Hartley Labor Management Rela- 
tions Act of 1947), though these prohibitions do not apply to 
voluntary contributions of union members to be spent by the 
unions' political committees. A federal statute making it illegal 
for "whoever" enters a contract with the U.S. government to 
make a political contribution (U.S. Code, Title 18, S. 611) has 
not deterred officials of contracting corporations from making 
gifts. The Hatch Act makes it illegal for anyone to contribute in 
excess of $5,000 to a candidate for federal office; but, though 
this twists the statute, one can contribute to as many national 
or state committees as are active, and some states do not require 
reporting of contributions. More significantly, the federal gift 
tax. probably limits political contributions more than the Hatch 
Act or any related state statutes. 

Statutory limitation of expenditures has also been attempted. 
The Federal Corrupt Practices Act of 1925 limits the spending of 
candidates for the U.S. Senate to $10,000 and of candidates for 
the House to $2,500. The effect of these limits can easily be 
avoided by using multiple campaign committees, and the statute 
is a dead letter. 

These laws represent unsuccessful piecemeal efforts to deal 
with problems as they arose. No comprehensive attempt to deal 
legislatively with the problems brought about by the role and 
influence of money in politics has ever taken place, yet a number 
of proposals have been offered in the areas of disclosure and 
publicity, governmental assistance and political broadcasting. 

Proposals for mandatory disclosure of financial contributions 
vary considerably as to the scope of activities and contributions 
to be disclosed, the coverage as to types of candidates and com- 
mittees, the content as to itemizing and totaling of receipts and 
disbursements, and the timing of reports, both pre- and post- 
nomination and election. 27 Securing disclosure is only a first step, 
however ; the larger purpose is to inform the public about sources 
of funds and categories of expenditures. 

To insure wide publicity, the President's Commission on Cam- 
paign Costs 28 recommended the establishment of a Registry of 
Election Finance in the General Accounting Office, supplanting 
the present practice of reporting to the Clerk of the House of 
Representatives or the Secretary of the Senate, who as political 
appointees are under more constraints than the GAO. The Regis- 
try would have the responsibility to receive, examine, tabluate, 
summarize, publish, and preserve the reported data, and to refer 



The Electoral Process and the Public Will 149 

apparent infractions of law to appropriate enforcement agencies. 
In addition, President Kennedy proposed a registration system, 
under terms of which committees undertaking activities affecting 
candidacies reportable under the law would have to file official 
notice of intention to operate. Once registered, they would have 
to report periodically. The Registry would make reports avail- 
able to the public, list and draw together relevant data regarding 
specific candidates, and undertake wide dissemination of the field 
data. 

As for governmental assistance to candidates, public policy 
could follow one of two main paths : encouraging a vast expan- 
sion in the number of small voluntary contributors, or providing 
public subsidies to assist the parties and candidates in financing 
campaigns. With some exceptions, the Commission on Campaign 
Costs generally advocated the course of expanding the financial 
base of support for the parties. In recommendations made to the 
Congress in 1966, President Johnson followed much the same 
course. 

One way of encouraging contributions is a system of limited 
tax credits and deductions for political contributions to give the 
potential contributor incentive to contribute by providing a fi- 
nancial benefit through the tax structure. Tax incentives have 
an advantage over direct subsidies in that the amount and direc- 
tion of the assistance are determined by citizens in their contribu- 
tion patterns, not by inflexible formulas. Five states have adopted 
deductions but because state income tax rates are low, their ef- 
ficacy remains unproved. Their importance rests in dignifying 
political contributing, in giving government encouragement to 
giving, and in providing solicitors with an additional sales tool. 

One form of help to candidates, both in pre- and post-nomina- 
tion periods, is the Minnesota enactment permitting specified 
candidates (and certain party officials) to deduct from their gross 
state income tax liability a limited amount of campaign expendi- 
tures or political costs which they had personally paid. 29 The 
rationale is that politics should be considered a business for some 
persons and accorded similar, though limited, benefits, as com- 
pared to those granted to a business man incurring certain ex- 
penses in the course of business-connected activities. 

A form of partial governmental subsidy compatible with ex- 
panding of financial constituencies was suggested, though not 
recommended, by the President's Commission, if the tax incentive 
system was first tried and failed. Under the "matching incentive" 
plan, the party organization would be given incentive to seek out 
large numbers of contributors ; contributions in amounts of $10 
or less per contributor raised by designated political committees 
would be deposited by the committees with the United States 
Treasury where the money would be matched by a like sum from 



150 Report of the Task Force on Law and Law Enforcement 

public appropriations. The combined total would be available to 
the committee to meet authorized types of costs, payments being 
made by Government check to sellers of goods and services. Pay- 
ment by Government check, as well as post-audit and public re- 
ports, would give assurance that appropriated and contributed 
funds were being properly used. 

The 1966 Presidential Election Campaign Fund Act, authored 
by Senator Russell Long (D.-La.), provided a tax checkoff system 
under which each taxpayer (husband and wife could each check 
off on a joint return) could designate that $1 of his tax payments 
be diverted to a special fund for distribution to national political 
parties for use in Presidential general elections. This subsidy 
plan received an unfavorable reaction in the media, partly be- 
cause of the way it passed (as an amendment to an unrelated bill, 
without consideration by elections or appropriations commit- 
tees), and partly because it was not accompanied by a revision 
of other laws affecting political finance, but merely added money 
without achieving reform. Also, the act raised serious constitu- 
tional questions, including the question of fair treatment of minor 
parties, and guidelines indicated expenses that could be reim- 
bursed. As enacted, the subsidy would have gone to the national 
committee of a qualifying party, and thus could have changed the 
balance of power within the major parties by infusing large 
sums of money at the top of the party structure, previously de- 
pendent to some extent upon state and local funds filtering up to 
the top. Before the subsidy plan had a chance to operate, how- 
ever, strong pressures developed for congressional repeal or mod- 
ification of the law, and it was in fact rendered statutorily inop- 
erative after having been on the books only seven months. 

The Senate Committee on Finance later reported out a new 
bill (Rep. No. 714, Committee on Finance, U.S. Senate, 90th 
Cong., 1st sess.) which provided for both tax credits for political 
contributions and a subsidy formula for Presidential and Sen- 
atorial candidates. Under this bill, the subsidy would not have 
gone to the parties, as in the earlier formulation, but directly to 
the candidates, and thus might have had a splintering effect upon 
the parties by decreasing financial dependence of candidates upon 
their parties. This bill, however, was not enacted. 

Another way to reduce campaign costs is to guarantee greater 
access of candidates to radio and television time. Broadcasters 
generally favor abolition of section 315a of the Federal Com- 
munications Act, the equal opportunity provision, which provides 
that when a qualified candidate for any public office is permitted 
to use broadcasting time, equal opportunity must be afforded all 
other candidates for the same office, even candidates of minor 
parties. This provision restrains broadcasters from affording 
free time as a public service to major candidates. (The equal op- 



The Electoral Process and the Public Will 151 

portunity provision was suspended with respect to the Presiden- 
tial and Vice Presidential campaigns of 1960, thus permitting 
the "Great Debates" without requiring stations to provide equal 
time to the minor party candidates also running for President.) 
One possibility short of repeal of the provision would be to 
revise the equal opportunity standards to permit "differential 
equality of access" for major and minor parties and candidates, 
so that major candidates could be alloted more time than minor 
candidates. Another proposal which has been made is to amend 
the Internal Revenue Code so as to give an incentive to broad- 
casters to program free time by permitting them to deduct from 
their taxable income a portion of the lost revenue for normal 
time charges in addition to out-of-pocket expenses of free broad- 
casts, now deductible anyway. Still another possibility could 
require broadcasting stations to give limited free time to political 
candidates as a condition of licensing. Alternatively, a free time 
requirement could be limited to public, or educational stations. 

THE ELECTION 

Basic to American political thought is the ideal that each man, 
white or black, rich or poor, should be heard through his repre- 
sentative. The broadening of the franchise to include the poor, 
the Negroes, women; the reapportionment decisions of the Su- 
preme Court to bring about fair ratios of people to their repre- 
sentatives; the discontents of the electorate over the existing 
convention system and the electoral college all have placed all 
Americans one step closer to the promise of democracy in this 
country. 

Nevertheless, not more than 60-65% of the total voting age 
population goes to the polls during a Presidential election. Some 
stay away voluntarily, from either apathy or protest. The apa- 
thetic will always be with us; their role in society is limited to 
what contribution they make in pursuit of their own interests. 
But those who stay away from the polls in genuine protest against 
the proffered choice of candidates number very few ; the fallacy 
of their method of protest is that it cannot be measured. The 
protesters blend with the apathetic and make no impact on the 
system. 

Those who do not refrain from voting voluntarily the dis- 
enfranchised are another matter. Several features of state law 
still operate to restrict the franchise in the United States, some 
of them universally recognized as necessary prohibitions like 
those against voting by mentally incompetent persons or children 
and some of a more disputable nature, such as the variety of 
residence requirements that exist in the various states. 

Today, all states have residence requirements of some nature. 



152 Report of the Task Force on Law and Law Enforcement 

The most common requirement is one year, imposed by 33 states. 
Mississippi has the most stringent-2 years. The mildest require- 
ment is West Virginia's, only 60 days. Most states also require 
a specified term of residency in the county, precinct or ward ; in 
every case less than the requirement for residency in the state 
itself. 

Exact figures are not available on the number of Americans 
actually disenfranchised by residency requirements. Population 
mobility has always been a prominent feature of American life, 
and each year about one of every five Americans moves. A large 
proportion of these moves are only on a local basis, however, so 
that many citizens can maintain their vote if they will go to the 
trouble of registering again at their new addresses. Some local- 
ities encourage registration by setting up evening registration 
in local schoolhouses, fire stations and the like ; but many require 
the voter to appear at an inconvenient city hall or courthouse 
registration office during regular business hours, when he would 
normally be at his job. 

In recent years, increasing opposition has mounted against 
the disfranchisement of voters in Presidential elections because 
of changes in residence. Even if a residency requirement can be 
justified for local elections, the argument goes, can it legitimately 
-and constitutionally be used to prevent citizens from partici- 
pating in Presidential elections ? The mere fact of change of resi- 
dence does not make a person any less a citizen of the United 
States, with any less stake in the Presidential election. 

A longstanding problem of the gravest sort has been denial to 
Negroes of the right to vote. In the relatively short period since 
the passage of the Voting Rights Act of 1965, however, it has 
significantly advanced voter registration and political activity, 
especially among Negro citizens in the South. In 1960, the total 
number of Negroes registered to vote in our southern states was 
1,410,148. By 1966, the number had increased dramatically to 
2,469,837 or by 75 percent. 30 This progress has occurred thanks 
to the implementation of the Act by the Department of Justice 
and the Civil Rights Commission, by the efforts of private civil 
rights organizations, and by the acceptance throughout the coun- 
try, but especially in the South, of the administrative enforce- 
ment of voting rights. 31 According to the Voter Education Proj- 
ect of the Southern Regional Council, in 1965 when the Voting 
Rights Act went into effect, 72 black officials were elected in the 
eleven Southern states. Since the elections in 1968, the number 
stands at 388. (This report only included those persons elected 
to public office, while gains have also been made in the number 
of appointive offices held by blacks.) 

In the country now, the total number of black elected officials 
is estimated by the Democratic and Republican National Com- 



The Electoral Process and the Public Will 153 

mittees at well over 800. However, the total number of elected 
officials in the Nation is 520,000. Thus, with the black population 
just under 12 percent of the total, they are still only holding 
0.015 percent of the elected offices. 

Moreover, not one Negro Senator or Congressman has repre- 
sented the South since the turn of the century, although 10 
represent other parts of the country in the 91st Congress the 
largest number since Reconstruction. 32 

Supreme Court decisions in recent years have also helped to 
extend the franchise. The "one man, one vote" reapportionment 
ruling has made political districts more reflective of the popula- 
tion distribution within the states. This ruling is presently being 
challenged, however, by the call to convene a constitutional con- 
vention which was led by the late Senator Everett Dirksen (R.- 
111.) . In the event the states decide to answer the call, the conven- 
tion could overturn the Supreme Court's ruling. 

One clear defect in our political system that contributes to the 
loss of a feeling of legitimacy about the actions of government 
is the exclusion of young people from voting. Most 18-year-olds 
feel very strongly that they have every necessary qualification 
for voting, including particularly the qualification of exposure to 
compulsory military service; objectively, it is impossible to dis- 
agree with them. Yet only Georgia and Kentucky permit 18- 
year-olds to vote Alaska, 19-year-olds, and Hawaii, 20-year-olds. 
The result is that in the rest of the country, millions of young 
people, interested in public issues and wanting to make their 
views on these issues felt, have little outlet for this feeling other 
than through participation as a worker in political campaigns. 
That thousands of young people have chosen this latter course of 
political action recommends them highly. But it does not alter 
the fact that our system of laws, by denying young people the 
right to vote, tends to force the expression of their views outside 
the legal system, in demonstrations on our campuses and in our 
streets, and other assaults upon our system. 

Another feature of our election process that has come under 
increasing criticism is the electoral college. Under the Constitu- 
tion, the November election is not for Presidential candidates 
themselves but for the electors who subsequently choose a Presi- 
dent. All that the Constitution says of this stage of the election 
process is: "Each state shall appoint in such manner as the 
legislature thereof may direct, a number of electors, equal to the 
whole number of Senators and Representatives to which the state 
may be entitled in Congress." In 1968, there were 50 states with 
a total of 100 senators and 435 representatives, plus three elec- 
tors from the District of Columbia (added in 1961 as a result of 
the enactment of the 23d amendment). Hence, the total number 
of presidential electors in 1968 was 538. In practice, in every 



154 Report of the Task Force on Law and Law Enforcement 

state, the political party obtaining a plurality of votes, no matter 
how small, names the entire slate of electors. This practice, how- 
ever, is not required by the Constitution, and each state is thus 
free to change it at will. 

The electors chosen on election day convene as "colleges" in 
their own states on the first Monday after the second Wednesday 
in December and cast their votes for a President and Vice Presi- 
dent of the United States. If no Presidential candidate receives 
a majority of the electoral votes when these are formally counted 
in Congress on January 16, the task of choosing a new Chief Ex- 
ecutive is constitutionally given to the House. (This phenomenon 
has occurred twice in history: first, following the elections of 
1800, when Jefferson and Burr had tied in the electoral voting; 
and second, in 1824, during the Adams- Jackson election in which 
neither garnered a majority of the electoral votes.) The Consti- 
tution gives each state a single vote in choosing a President in 
the House, and a majority of the states is required to elect. The 
House must choose from one of the three top electoral vote re- 
cipients. The rules of the House provide for continuous balloting 
on President until a winner is declared. (It took 36 ballots to 
select Jefferson over Burr.) Under existing law, the balloting 
would start January 6, leaving 14 days until the scheduled in- 
auguration. If no President were chosen by January 20, under 
the 20th amendment, the Vice President-elect would become 
President. But he would only be Acting President, subject to 
removal at any time that a majority of the delegations in the 
House agreed on a new President. 

If no candidate for Vice President receives an electoral col- 
lege majority, the Senate elects a new Vice President, with each 
member having a single vote and an absolute majority of the 
Senate membership required for election. Here the choice must 
be from the top two electoral vote recipients for Vice President. 
(Only once in history has the Senate been called on to choose a 
Vice President in 1837, when Martin Van Buren's Vice Presi- 
dential running mate, Col. Richard M. Johnson of Kentucky, won 
only 147 electoral votes, one less than a majority, but was elected 
by the Senate over the runner-up in the electoral vote for Pres- 
ident.) 

From the start, the method of electing the President has been 
a subject of debate and discussion. At the Constitutional Con- 
vention, a few key members, including Madison, Franklin and 
Gouverneur Morris, favored direct popular election. Others 
would have preferred to see the President elected by Congress or 
by State Governors. One of the main arguments for the electoral 
college system was that through the provision for at least three 
electors regardless of population, it gave the small states some 
protection against domination by large states. If we were to 



The Electoral Process and the Public Will 155 

preserve our Federal System of government, it was felt, this was 
an important consideration, and this argument may have gone 
far in swaying the Convention. 

Since January 6, 1797, when Rep. William L. Smith of South 
Carolina offered in Congress the first Constitutional Amendment 
proposing reform of our procedure for electing a President, 
hardly a session of Congress has passed without the introduction 
of one or more resolutions of this character. In the 57-year 
period between 1889 and 1946, 109 amendments were proposed 
and 172 in the period from 1947 to 1965. Most interestingly, 
probably more amendments have been proposed concerning the 
presidential election than concerning any other single provision 
of the Constitution. 

Those who favor retaining our present electoral system argue 
that it has stood the test of time and that it has produced only 
three Presidents who failed to win a plurality of the popular 
vote (Adams in 1824, Hayes in 1876, and Benjamin Harrison in 
1888). On only two occasions since 1789 has the election of the 
President fallen into the House of Representatives (in 1800 and 
again in 1824) , and only in one of these instances did the election 
by the House result in the selection of a "minority" President 
(Adams). Moreover, the existing system, with its requirement 
of an absolute majority of electoral votes and the general state- 
unit system which tends to produce the necessary electoral vote 
majority for one or other of the major parties, operates to freeze 
out third parties. The existing system's exaggeration of the win- 
ner's electoral vote helps assure stability, it is argued, in giving 
the appearance of nationwide backing in a particularly close and 
hard-fought campaign. Thus it may help the newly elected Pres- 
ident to win general acceptance. The existing system "forces" 
candidates to campaign in most of the states, whereas in a direct 
election, he would concentrate most of his efforts in densely pop- 
ulated states, and particularly in urban areas. Blocks of primarily 
rural states (e.g., the South) could be practically ignored or left 
to third party candidates altogether. Finally, it is said, too much 
uncertainty persists as to what is a better method. 

Those who oppose the present electoral college system make 
several points. First, they criticize the office of presidential elec- 
tor, including its "independent" nature and the authority of the 
states at any time to change the method of "appointing" or 
selecting the electors (i.e., to manipulate the system from election 
to election). Second, they argue that under the so-called "win- 
ner-take-all," unit-rule, or general-ticket method (which credits 
a state's entire electoral vote to the candidate receiving the most 
popular votes), great numbers of voters become disfranchised 
and, in effect, have their votes cast in favor of the candidate they 
opposed. Third, the present system in placing exaggerated im- 



156 Report of the Task Force on Law and Law Enforcement 

portance on the large swing states with great blocs of electoral 
votes, inflates the bargaining power of minorities and pressure 
groups in such states where the popular vote closely divides and 
invites fraud in the large, crucial states where the vote may be 
close. 

The proposed amendments to the Constitution of the United 
States which would provide new methods for the election of the 
President fall into five general classes : direct election plans, dis- 
trict plans, proportional plans, the automatic electoral vote or 
"non-elector" plans, and, lastly, a combination of these four. 

The direct election plan, recently passed by the House of Repre- 
sentatives, 33 would abolish the electoral college and electoral vote 
altogether and would provide for the election of the President 
and the Vice President by a majority of the total popular vote in 
the country. In the event no candidate received at least 40 per- 
cent of the vote, a run-off election would decide between the two 
pairs of candidates who received the greatest number of popular 
votes. The House-passed proposal would thus eliminate electors, 
the electoral college and the unit rule, and the throwing of the 
election into Congress. 

The district plan, formerly known as the Mundt-Coudert Plan, 
would preserve the Electoral College but would eliminate the 
present procedure of giving a state's entire electoral vote to one 
candidate. Electors would be chosen by the voters, one for each 
district in every state, and in addition, two for each state at large. 
Before election the electors would have to pledge to support their 
party's candidates, a binding pledge. These electors would vote 
and the candidates who received the highest number of such elec- 
toral votes would be President, providing he had a majority; fail- 
ing a majority, the Senate and the House, meeting jointly, would 
elect a President from the top three candidates. 

The proportional plan, formerly referred to as the Lodge- 
Gossett Plan, 34 would abolish the Electoral College, but would 
retain the electoral vote. The electoral vote in each state would 
be apportioned among the Presidential candidates in accordance 
with the number of popular votes they receive, so that the candi- 
date who received a plurality of the popular votes would not re- 
ceive the state's entire electoral vote as he would under the pres- 
ent system. 

The "automatic" electoral vote plan would also abolish the 
office of elector but retain the electoral vote of each state. Under 
this plan, however, the entire electoral vote of each state would 
be automatically awarded to the candidate receiving the greatest 
number of votes for President in that state (as it is at present). 

The "mixed" or MacGregor plan, devised in 1969 by Repre- 
sentative Clark MacGregor (R.-Minn.), would have electoral 
votes counted for all presidential candidates as under the proper- 



The Electoral Process and the Public Will 157 

tional scheme. However, if the high man did not receive 50 per- 
cent or more of the electoral vote, the decision would shift to the 
popular vote. If the high man did not get at least 40 percent of 
that, the President would be chosen by the Senate and House in 
joint session, with each member casting one vote for one of the 
two top candidates. 

CONCLUSION 

The procedures of our nominating conventions are currently 
undergoing substantial reforms. Other problems like campaign 
financing and the electoral college system lack effective solutions 
at this time (though the recent action by the House may signal 
the beginning of the end for the electoral college). 

The events of 1968 perhaps exaggerated the degree of disen- 
chantment of the American people with their political institu- 
tions, but some changes in the electoral process clearly are neces- 
sary to retain the confidence of the people in the system. The 
situation could be labeled "urgent". Many groups, especially the 
young and the blacks, want a more effective voice in the political 
process. The process of reform must continue if the promise of 
democracy, equality, and participation is to be kept. 



REFERENCES 

1. Alexander M. Bickel, The New Age of Political Reform The Electoral 
College, the Convention, and the Party System (New York: Harper & 
Row, 1968), at 21. 

2. Vladimir O. Key, Politics, Parties, and Pressure Groups (New York: 
Thomas Y. Crowell, 1964), at 431. 

3. Id. 

4. See Denis Brogan, Politics in America (New York: Harper, 1954), at 
194; and J. S. Chase "The Emergence of the National Nominating 
Convention", (unpublished Ph.D. thesis, University of Chicago, 1962), 
at 11; and Theodore J. Lowi, "Party, Policy and Constitution in 
America," in William Chambers and Walter D. Burnham, eds., The 
American Party System Stages of Political Development (New York: 
Oxford University Press), 1967. 

5. Chase, id. at 100. 

6. Brogan, supra note 4, at 66. 

7. Charles E. Merriam and Louise Overacker, Primary Elections, A Study 
of the History and Tendencies of Primary Election Legislation (Chi- 
cago: University of Chicago, 1928), at 4. 

8. J. W. Davis, Presidential Primaries: Road to the White House (New 
York: Crowell, 1967), at 15. 

9. Merriam, supra note 7, at 29. 

10. Ernst C. Meyer, Nominating Systems: Direct Primaries Versus Con- 
ventions in the United States (Madison, Wis.: published by the author, 
1902), at 97. 

11. Davis, supra note 8, at 27. 



158 Report of the Task Force on Law and Law Enforcement 

12. Id. at 28. 

13. Id. at 30. 

14. Donald G. Tacheron & Jill Spier, A National Presidential Primary? 
Presidential Primary Legislation in Congress: 1945-1968 (Washington, 
D.C.: The Library of Congress, Legislative Reference Service, Nov. 
20, 1968), at 49-57. 

15. 1964 Proceedings, at 30-31. 

16. Report of Committee on Credentials Adopted by 1968 Democratic Na- 
tional Convention. 

17. Resolution 12 adopted by the Democratic National Convention, 1968. 

18. Report of Committee on Credentials, supra note 16. 

19. Quoted in Austin Ranney and Willmore Kendall, Democracy and the 
American Party System (New York: Harcourt, Brace & Co., 1956), 
at 315. 

20. James M. Perry, The New Politics (New York: Potter, 1968), at 7. 

21. These are: American Bar Association, American Medical Association, 
American Petroleum Institute, American Iron and Steel Institute, 
Association of American Railroads, Business Advisory Council, Chiefs 
of Foreign Missions and Special Missions, Manufacturing Chemists 
Association, National Association of Electric Companies, National 
Association of Manufacturers, National Association of Real Estate 
Boards, National Coal Association, and Chamber of Commerce of the 
United States. 

22. Reported contributions : 

Year Republicans Democrats Miscellaneous Total 



1956 


$741,189 


$8,000 


$2,725 


$751,014 


1960 


425,710 


63,255 


2,500 


493,465 


1964 


200,310 


225,790 


4,618 


468,218 



23. When it came to spending tax-deductible corporate funds to benefit 
the party in power, the top defense contractors were more generous. 
In 1965, eleven of the top 25 defense contractors of fiscal year 1965 
bought full page advertisements, at $15,000 per page, in the Democrats' 
political advertising book, Toward an Age of Greatness. Not long 
afterwards, the Congress forbade corporations from claiming tax de- 
ductions for the expense of ads in political program books. Herbert E. 
Alexander, Financing the 1964 Election (Princeton, N.J. : Citizens' Re- 
search Foundation, 1966), at 99-104. 

24. Because the Democratic incumbent was available for reelection, Demo- 
cratic candidates spent very little at this stage of the campaign, though 
reportedly more than $600,000 was expended in the primary campaigns 
by and against George Wallace. 

25. Estimated at 300,000 persons prior to 1964 Republican Convention; 
McCarthy estimates are perhaps half that number for 1968. 

26. K. McKeough and J. Bibby, The Costs of Political Participation: A 
Study of National Convention Delegates (Princeton: N.J. : Citizens' 
Research Foundation, 1968), Table 4, at 85. 

27. Existing federal requirements concerning disclosure of campaign 
funds are essentially the same as those enacted by the passage in 1925 
of the Corrupt Practices Act. Reports of receipts and expenditures 
must be made not only by candidates for the House or Senate, but 
also by any interstate committee which seeks to influence federal 
elections and by any person who spends more than $50 a year to 
influence federal elections in two or more states. These reports are 
open for public inspection. 

28. U.S. President's Commission on Campaign Costs, Financing Presiden- 



The Electoral Process and the Public Will 159 

tial Office Campaigns (Washington, D.C.: Government Printing Office, 
April 1962), at 17-20. 

29. Minn. Sess. Laws 1955, c. 775, amending Minn. Stat. Sec. 290.09, 290.21, 
1953. 

30. John Hope Franklin and Isidore Starr, The Negro in Twentieth 
Century America (New York: Vintage Books, 1967), at 373. 

31. United States Commission on Civil Rights, Political Participation 
(Washington, D.C.: Government Printing Office, 1968). 

32. Brooke, Mass.; Clay, Mo.; Chisholm, N.Y.; Conyers, Mich.; Dawson, 
111.; Diggs, Mich.; Hawkins, Calif.; Nix, Pa; Powell, N.Y.; and Stokes, 
Ohio. 

33. See Cong. Rec. H8142-43 (daily ed. Sept. 18, 1969). 

34. After the then Senator H. C. Lodge (R.-Mass.) and Representative 
Ed Gossett (D.- Tex.). 



CHAPTER 8 
CONGRESS AND THE PUBLIC WILL* 



In 1790, when the United States was trying out its new form 
of government, the average U.S. Senator represented 220,000 
people, the average U.S. Representative only 37,000 people. 
Nearly a half century later, in the Jackson-Adams presidential 
contest of 1824, only 356,000 votes were cast, less than half the 
present day population of the District of Columbia. As late as 
1900, the average Congressman represented less than 200,000 
people. The citizen, of course, also voted for state and town or 
city legislators representing even fewer numbers. Today, how- 
ever, the average Congressman represents twelve times as many 
constituents as he did in 1790. Yet the American Congress is 
still supposed to be uniquely responsive to the will of the people. 

Our form of government requires that the national legislature 
maintain a direct and intimate working relationship with the 
people and that Congress remain open and accessible. As the 
Joint Committee on the Organization of the Congress asserted 
in 1966, 

The Congress ... is the only branch of the federal govern- 
ment regularly and entirely accountable to the American peo- 
ple. Indeed, it is the people's branch. Our constitutional sys- 
tem is based on the principle that Congress must effectively 
bring to bear the will of the people on all phases of the 
formulation and execution of public policy. 1 

The two houses of Congress are designed to embody the will 
of the majority of citizens, insofar as that will is known or 
expressed. In providing that Members of the House of Represen- 
tatives should be chosen "by the people of the several states," the 
framers of the Constitution left no doubt that they considered 
that branch a popular body. 2 And while the Founding Fathers had 
other ideas concerning the Senate, the history of the 17th amend- 
ment (ratified in 1913) demonstrates that the Senate has also 



This chapter was prepared by Judith Toth of Washington, D.C. based 
in part on a research contribution by Prof. Roger H. Davidson, Department 
of Political Science, University of California at Santa Barbara. 

161 



162 Report of the Task Force on Law and Law Enforcement 

come to be viewed as essentially a popular institution. Strong 
public pressure expressed through the House of Representa- 
tives, state governments, pressure groups, petitions, and refer- 
enda succeeded in amending the Constitution to provide for the 
popular election of Senators. Only in a secondary sense, perhaps, 
do members of that body represent political jurisdiction. 3 

Opinion polls of the past few years indicate, however, that 
large segments of the American people do not see Congress as 
responsive to the public will. In the past five years, public sup- 
port of Congress has fluctuated widely. During the legislative 
stalemate of President Kennedy's administration, only 35 percent 
of a national sample of adults gave Congress a favorable rating. 
For those expressing a negative judgment (51 percent of the 
sample), the chief irritant was the dilatory handling of law- 
making. Three major unpassed proposals civil rights, medicare, 
and aid to education were frequently cited as examples. 4 

After President Kennedy's assassination, the long "honey- 
moon" between President Johnson and Congress unblocked major 
legislation in many fields. Public support for Congress soared, 
and late in 1965 it stood even higher than support for the Presi- 
dent. Congressional action on legislation drew most of the favor- 
able judgments : "passed a lot of bills," "passed civil rights bill," 
"made progress," and "supported President" were comments 
volunteered by citizens. 5 As crisis again gripped the nation, 
however, public support fell. According to a survey late in 
1967, 41 percent gave Congress a favorable rating and 59 per- 
cent a negative rating. 6 This time, however, there was a close 
parallel between public ratings of the President and Congress, 
indicating that the dissatisfaction, unlike the situation in 1963, 
may have been part of a generalized alienation from the political 
process. 

Periodic exposes of wrongdoing by individual members of Con- 
gress (or congressional employees, as in the case of Bobby Baker) 
also produce public dissatisfaction and encourage general cyni- 
cism about Congress. Reactions to the Dodd and Powell cases 
were extremely negative, many citizens professing at the time 
to believe that many Senators and Representatives were guilty 
of similar activities. 7 Disturbingly, cynicism prevails especially 
among better educated citizens. Such attitudes are not confined 
to the intellectual community, however, where it has long been 
fashionable to view the foibles of Congress with considerable 
condescension an attitude which may perhaps decline as the 
universities themselves enter upon a period of institutional 
suffering and new self-examination. The findings of the opinion 
surveys represent the judgments of millions of citizens of all 
walks of life. 

How, then, does Congress respond to the public will and how 



Congress and the Public Will 163 

does that response work in practice by means of seniority and 
the committee system, by the filibuster, and by the lobbies? And 
does the majority of Congress respond to external public de- 
mands, or to its own majorities? 8 

SENIORITY AND THE COMMITTEE SYSTEM 

Congressional government, Woodrow Wilson declared long ago, 
is committee government. " Congress in session is Congress on 
public exhibition, while Congress in its committee rooms is Con- 
gress at work." 9 Standing committees enable Congress to di- 
vide labor on substantive issues and encourage individual legis- 
lators to develop expertise concerning matters handled by their 
committees. Most committees further divide into subcommittees 
to permit even more specialized consideration of problems with 
the attendant benefits of expertise and the publicly visible asso- 
ciation of members with particular issues. Since congressional 
government to a large extent means government by standing 
committee, the selection of committee chairmen and members, 
and the procedures followed by committees, are matters of funda- 
mental importance. 

Committee assignments are made by the party organizations. 
House and Senate Republicans and Democrats employ slightly 
different procedures in making assignments. In the Senate, the 
Democratic Steering Committee and the Republican Committee 
on Committees handle assignments. House Democrats rely on 
their members on the Ways and Means Committee, who are 
chosen to reflect balance among regions and factions. The House 
Republican Committee on Committees includes one member from 
every state having a Republican representation ; but because each 
member casts votes equivalent to the number of Republican Rep- 
resentatives from his state, pivotal decisions are in the hands of 
members from states such as New York, Ohio, Illinois, and 
California, that have large Republican delegations. 

Initial committee assignments are made in accord with a vari- 
ety of considerations e.g., the wishes of the committee chair- 
man, the need for political or geographic balance on a committee, 
the relevance of the assignment to the member's background or 
constituency but especially on the basis of seniority. 10 Even 
more delicate is the task of apportioning vacant committee posts 
among incumbents who want to trade their initial assignments 
for more desirable ones. 11 Elected party leaders exercise con- 
siderable influence in drawing up the assignments, though in no 
sense is their role controlling. While every assignment must be 
ratified by the entire party caucus (or "conference," in the case 
of Republicans), the committee on committees' recommendations 
are seldom challenged. 



164 Report of the Task Force on Law and Law Enforcement 

Some committees deviate in significant respects from the 
membership of the parent bodies. Agricultural committees over- 
represent rural areas and interior committees overrepresent 
the West because legislators from those constituencies tend to 
volunteer to serve on them. These committees are thus weighted 
in favor of producer interests, for example, and against those, 
such as consumers, whose interests are less direct or intense 
or at least are regarded to be so. Seats are especially coveted 
on the most prestigious and important committees (like House 
Rules, the two Appropriations Committees, Senate Finance, 
House Ways and Means, and Senate Judiciary), and membership 
accordingly gravitates to legislators of some seniority. Once 
given an assignment, the individual legislator is considered to 
have a right to his assignment for the duration of his tenure in 
Congress, provided that it is uninterrupted by defeat at the polls. 
(Infrequently, a junior member may be "bumped" from a com- 
mittee if his party loses enough seats in the House in order to 
justify changing the ratio of party members on the committee.) 

Committee members advance by seniority (defined by contin- 
uous terms of committee service), with the most senior majority- 
party member being named chairman. This is the essence of the 
much-debated "seniority system." 

While the "rule" of seniority is almost never circumvented, 
it is not a formal requirement, and the appointment of commit- 
tee chairmen must be approved by the party's entire caucus. 12 
Several recent precedents exist for caucus modification of senior- 
ity privileges. In 1965 House Democrats removed the seniority of 
two southerners who had supported the Republican Presidential 
nominee, Barry Goldwater, in the 1964 election. The two men, 
John Bell Williams of Mississippi 13 and Albert B. Watson of 
South Carolina, were placed at the bottom of their committees' 
seniority lists. Williams was second-ranking Democrat on the 
Interstate and Foreign Commerce Committee, and the resignation 
of the Committee's chairman within the year meant that the 
caucus action had effectively denied him the chairmanship. (A 
relatively junior member, Watson later changed his party affilia- 
tion to Republican and has been reelected as such ever since.) 
Two years later, House Democrats voted to rescind the seniority 
of Representative Adam Clayton Powell, chairman of the Edu- 
cation and Labor Committee; Powell had been investigated and 
found by a House Committee to have misused House funds. The 
most recent case arose in 1969, when House Democrats voted to 
strip Representative John Rarick of Mississippi of his seniority 
for having supported third-party candidate George C. Wallace in 
the 1968 Presidential campaign. Rarick, a second-term Congress- 
man, was lowest ranking Democrat on the Committee during the 



Congress and the Public Will 165 

90th Congress but would have moved ahead once a new crop of 
freshman Democrats were appointed to the Committee. 

Tampering with seniority is not, however, an everyday occur- 
rence. In Powell's case, action was taken against a man who 
not only was personally unpopular in the House and who had 
engendered strong pressures for some form of disciplinary ac- 
tion, but who had clearly embarrassed the body in the public 
eye. In the remaining cases, the men had failed to support the 
party's Presidential nominee. 

No feature of congressional practices has drawn as much 
criticism as seniority. The seniority system has undoubtedly 
contributed to the unrepresentativeness of legislative leadership, 
because longevity in office tends to be associated with homogene- 
ous, one-party districts. 14 In the 90th Congress, for example, 
southerners comprised only about one-fifth of the membership 
of the Senate and a quarter of the membership of the House, yet 
they controlled the chairmanships of ten of the sixteen Senate 
standing committees and ten of the twenty-one House committees. 
Such men are frequently at loggerheads with the policies of the 
national party, a fact which can exacerbate conflict between Con- 
gress and the Executive branch. 

Middle-seniority legislators in particular often express impa- 
tience at the seniority system's inability to make adequate use 
of their talents and experience. Some reformers have proposed a 
frontal attack upon seniority. Former Representative Thomas G. 
Curtis (R.-Mo.), for example, long advocated rotation in office 
a six-term limit in the tenure of all members. Representative 
Morris K. Udall (D.-Ariz.), an outspoken advocate of reform, has 
repeatedly suggested that each committee select its chairman 
from among the three top-ranking majority members. Such pro- 
posals seem to have little chance for adoption, however, in part 
because the very seniority leaders most threatened by the pro- 
posals have the most power formal and informal to prevent 
their passage. 15 

Other reformers, including long-time Representative Richard 
Boiling (D.-Mo.), therefore express hope that party caucuses 
could and would exercise their undoubted authority by refusing 
to appoint chairmen who repeatedly deviate from stated party 
policies. Boiling suggests that a Democratic Speaker (or Minor- 
ity Leader) appoint the Committee on Committees and its chair- 
man, all the party's members on the Rules Committee (including 
the chairman or ranking minority member), and the chairman 
of all other standing committees. Such choices would then be 
ratified by the party caucus. Though seniority would probably 
remain the most important criterion, Boiling believes, "the im- 
implied threat of party discipline . . . would give pause to the 
member who would bolt his party's program. 16 



166 Report of the Task Force on Law and Law Enforcement 

Yet, troublesome as the seniority system is, it is generally 
conceded that no viable substitutes are at hand. However unrep- 
resentative and inefficient, the use of the seniority system to 
appoint committee chairmen serves to isolate and reduce a poten- 
tially divisive set of decisions. Its very rigidity is no small virtue 
in a conflict-laden institution such as a national legislature. 17 
Defenders of the practice also point to the advantage of ensuring 
that experienced members, and those who are relatively impervi- 
ous to electoral pressure, are responsible for upholding congres- 
sional prerogatives in dealing with the increasingly powerful 
Executive branch. 

Moreover, some of the criticism of the seniority system is 
misdirected. As the Joint Committee on the Organization of the 
Congress noted in 1966, "the power of the chairman is a more 
fundamental issue in sound committee operations than is his 
method of selection. 18 Though chairmen range from the ineffec- 
tual to the dictatorial, they possess impressive formal and in- 
formal powers. Most committee chairmen assume responsibility 
for assigning bills to subcommittees, for selecting subcommittee 
chairmen, for scheduling consideration of bills, for supervising 
preparation of reports on bills, and finally for transmitting re- 
ports to the Rules Committee. Most chairmen also assume full 
responsibility for setting subcommittee jurisdictions, for dis- 
tributing travel and other expense budgets, and for hiring com- 
mittee staff members. "The committee member who has served 
twenty years is not just five percent more powerful than the 
member who has served 19 years," Republican Morris Udall (D.- 
Ariz.) has observed. "If he is chairmen he is 1,000 percent more 
powerful." 19 

The legislative process has enough detours so that the chair- 
man of a standing committee can tie up important items of legis- 
lation for extended periods of time. The chairman may, or may 
not, take junior committee members into his confidence as he 
proceeds ; he may, or may not, consult minority members. Many 
measures in education, welfare, urban affairs, and civil rights- 
have been delayed or killed by unsympathetic committee chair- 
men. And while majorities on the Senate or House floor may in 
theory remove a measure from an intransigent chairman, the 
procedural devices for accomplishing this remain clumsy and 
difficult. 

In reacting to abuses of the chairman's powers, a number of 
committees have adopted rules of procedure which guarantee 
committee members a part in making decisions. In recommend- 
ing that such safeguards extend to all committees, the Joint Com- 
mittee on the Organization of the Congress proposed a "committee 
bill of rights" designed to insure that committee majorities have 



Congress and the Public Will 167 

an opportunity to work their will. As the Joint Committee ex- 
plained : 

The chairman is charged with a heavy responsibility and 
should have authority commensurate with that responsibility. 
It is unrealistic to suppose that a committee could operate 
efficiently without allowing the chairman to propose the 
committee's agenda, to participate in the selection of staff, 
to assign members to subcommittees, and, in general, to 
manage committee business. Nevertheless, the chairman is 
the agent of the committee. The ultimate power does and 
should rest with a majority of the committee itself. 20 

The most feasible avenue of reform, the Joint Committee con- 
cluded, probably lies in strengthening the majority rule in com- 
mittees. At minimum, committee rules should guarantee majority 
participation in calling meetings, transacting business, hiring 
staff, and planning the agenda. Minority party members, by the 
same token, should be assured adequate staff assistance (now 
left to the discretion of the chairman) and at least some meaning- 
ful role in framing the committee's agenda. The "committee bill 
of rights" included in the 1967 legislative re-organization bill 
would be a modest step in this direction. Passed by the Senate 
in 1967, the bill met objections from the House Democratic lead- 
ership, which kept the measure bottled up in the Rules Committee. 

But reformers in the 91st Congress may be wearing down the 
resistance of Congressional elders to a general reform bill the 
first since 1946. This bill aims particularly at curbing arbitrary 
actions by the powerful committee chairmen. Besides requiring 
written procedural rules for all committees, thus opening more 
avenues for a committee majority to override a chairman, the 
changes would: (1) restrict proxy voting by absent committee 
members, a device that now allows some chairmen and other 
senior members to control absentees' proxies to use as they 
wish; (2) give members of the minority party the right to hire 
some committee staff assistants of their own ; (3) open committee 
meetings to the public, with a few exceptions, and allow radio 
and TV coverage of open hearings (the House now generally 
forbids broadcasting, and its Appropriations Committee, for one, 
holds almost all meetings behind closed doors) ; and (4) require 
public disclosure of all committee votes. 21 

THE SENATE FILIBUSTER 

Perhaps the most celebrated facet of "minority rule" is the 
Senate's practice of tolerating "extended debate," or filibuster, 
to talk a measure to death. In contrast to the House, where debate 
is rigorously controlled, Senate Rule 22 makes it exceedingly diffi- 



168 Report of the Task Force on Law and Law Enforcement 

cult to close off debate if a few Senators wish to forestall a 
vote. A petition must be signed by 16 members, and then the 
issue of cloture is brought up two days later. Two thirds of the 
Senators present and voting must agree to cloture, after which 
each Senator still has up to one hour to speak on the issue at hand. 

Every two years opponents of the filibuster regularly seek 
to strengthen the cloture provision usually proposing to reduce 
the required votes from two thirds to a simple majority. Several 
times the Senate has come close to revising Rule 22, but the issue 
remains procedurally clouded by the question over whether or 
not the Senate is a "continuing body" and thus has continuing 
rules. The notion of continuity attracts more support than the 
substance of Rule 22 itself and has, thus far, prevented change. 22 

In 1957, however, the President of the Senate, Vice President 
Richard M. Nixon, suggested a rationale whereby a majority 
of Senators could act upon rules changes without doing violence 
to the notion of the Senate as a "continuing body." In an informal 
advisory opinion rendered as President of the Senate, Mr. Nixon 
pointed out that, under the Constitution, each house has the right 
to "determine the rules of its own proceedings." 23 Because this 
right derives from the Constitution itself, it should not be re- 
stricted or limited by rules adopted in a previous Congress. Thus, 
he concluded, in each new Congress a current majority has the 
right to adopt its own rules. 24 Though Mr. Nixon's ruling was 
only advisory, retiring Vice President Hubert Humphrey actually 
made such a ruling in 1969, in the early days of the 91st Con- 
gress. But his ruling was explicitly rejected by a Senate vote 
again demonstrating the appeal of the "continuing body" concept, 
quite apart from the filibuster issue itself. 

One factor that bears upon the Senate's failure to eliminate 
the filibuster is the infrequency of its use. (Normally, Senate 
debate is closed by unanimous consent agreements.) Yet these 
few occasions have been deeply significant, since the major use 
of the filibuster in modern times has been to defeat civil rights 
legislation. For decades a southern minority, standing behind 
Rule 22, prevented effective and moderate action on civil rights. 
Only mass freedom marches, police dogs, and fire hoses, and the 
murder of civil rights workers, made possible the invocation of 
cloture to pass the Civil Rights Act of 1964 and the Voting 
Rights Act of 1965. The Civil Rights Act of 1968, which con- 
tained prohibitions against discrimination in the sale or rental 
of housing, was enacted when, after three unsuccessful attempts, 
the Senate finally voted cloture by the two-thirds vote required. 

Defenders of the present cloture arrangement one that has 
been successfully invoked less than 10 times in the four decades 
of its existence argue that it promotes freedom of debate, which 
is a cherished Senate principle. Allowing a majority of Senators 



Congress and the Public Will 169 

to close off debate would, they maintain, impair the deliberative 
function and render the Senate a mere copy of the House of 
Representatives, where legislation can be "gaveled" through 
briskly with only limited debate. Free, unhurried deliberation also 
permits small numbers of Senators who feel deeply on issues to 
make last-resort appeals to the court of public opinion. "It takes 
a good many weeks to inform the electorate in a country of 195 
millon," the late Senator Everett M. Dirksen observed in defend- 
ing the filibuster in 1967. 25 If a few more votes are needed and a 
realistic chance exists of obtaining them by persuasion, com- 
promise, or public pressure the filibuster can, it is argued, serve 
as a useful parliamentary tool. 

The filibuster has been used in the past to obstruct legislation 
which, in retrospect, would have been destructive to individual 
freedom. An outstanding example is the filibuster during World 
War II against the Forced Labor Bill which would have frozen 
people in their jobs for the duration of the war. There have been 
many other cases where a filibuster, or the threat of one, was a 
tactic in a "liberal" rather than a "reactionary" cause. And just 
the threat of a filibuster can be enough to keep legislative action 
off the floor of the Senate (as in the case of the nomination of 
Abe Fortas as Chief Justice in 1968). 

On the other hand, the present provisions of Rule 22 are at 
odds not only with the practice in the House of Representatives, 
but also with general principles of parliamentary law, early 
Senate procedures, and (almost without exception) parliamentary 
practice in legislatures throughout the English-speaking (and 
even most of the non-English-speaking) world. Only in the 
Senate of the United States, observes Senator Clifford P. Case 
(R.-N.J.), must an opposition be beaten down by "physical ex- 
haustion" and "the medieval practice of trial by ordeal still 
survives." 26 

Even if the cloture rule were strengthened to allow a simple 
majority to end debate, the right of the minority indeed, of all 
Senators to state their case would not necessarily be curtailed. 
The present cloture rule, once invoked, permits each Senator as 
much as one hour to speak on the substantive issue at hand. 
Thus, as many as a hundred hours of debate remain, even after 
cloture has been invoked. The vote required for cloture could be 
changed without changing the amount of time for debate between 
the voting of cloture and the vote on the substantive issue. 

Proponents of the filibuster argue that no simple majority 
should prevail over a substantial minority that feels deeply 
enough about an issue to engage in "extended debate." Whatever 
may be the abstract merits of this argument, it is increasingly 
difficult to maintain it in view of the uses to which the filibuster 
has been put. "In the specific case of legislation for racial equal- 



170 Report of the Task Force on Law and Law Enforcement 

ity," Robert Bendiner has noted, "involving the most fundamental 
rights of a large minority of the nation's citizens, a plea for 
filibustering in the name of minority rights tumbles into absurd- 
ity altogether " 27 

THE LOBBY 

For as long as our government has existed, people have banded 
together to give strength to their special interests by participating 
in pressure groups, or "lobbies." Pressure groups act out their 
special role in the democratic process at all levels of government, 
but most notably, perhaps, in relation to the Congress. Some 
groups are based on grass roots issues like "gun control" or "tax 
reform." Some are employment-oriented groups like labor unions. 
Some are purely economic big businesses and small businesses, 
each looking out for their own particular interests. There are 
veterans' lobbies, church lobbies, lobbies for humanitarian causes. 
There are even lobbies for foreign governments or firms. 

Lobbying is protected by the First Amendment to the Con- 
stitution the right to petition the government for redress of 
grievances. No one is disposed to tamper with or restrict this 
right. Like the other First Amendment rights of free speech and 
free assembly, there can be abuse of the freedom guaranteed to 
petitioners to Congress, but this potential for abuse does not, in 
any case, demonstrate that the right does not or should not exist. 

Nonetheless, a growing sentiment insists that lobbies are cor- 
rupt or corrupting. Time and again front page stories break 
on attempted bribes of government officials by lobbies, or of cam- 
paign contributions by persons interested in influencing the legis- 
lative policies of elected officials. Although these cases are the 
sensational and exceptional, they deeply disturb the faith of the 
electorate in their government. All too often, it seems to many 
people, only monied interests are effectively heard in the halls 
of government. Despite examples of victories of an aroused citi- 
zenry over big business, as in the case of the passage of the 
antitrust laws, or big labor, as with the Taft-Hartley Act, many 
feel that government is too big to listen to the "little" man. 

The Congress is not unaware of the problems of lobbies. The 
Federal Regulation of Lobbying Act of 1946 requires lobbyists 
to make periodic public disclosure of the sources and purposes of 
their employment and the amount of their compensation. Thus 
it seeks to guard against those who would influence legislation 
clandestinely or from hidden motives, while not hindering those 
who wish openly and frankly to advocate their views to the Con- 
gress. Further strengthening of full disclosure laws of this type 
is much to be desired. 

Perhaps the most fundamental problem of the lobby -is that 



Congress and the Public Will 171 

minority groups (such as poor whites, Indians, blacks, etc.) are 
unorganized groups which have no lobby. Often they are outside 
the political process. If and when they try to enter, it requires 
monumental effort. Until the civil rights movement, many of 
these people but especially Negroes had little or no influence 
in the legislative chambers of this country. Even now, it takes 
the combined interest and money of the "enlightened" middle- 
and upper-classes, plus the tremendous outpouring of time and 
energy by black leaders, to sustain the movement toward black 
dignity and equality. 

When the poor do get organized, as was ostensibly done in 
the summer of 1968 with the Poor People's March to Washington 
and the building of Resurrection City on the Mall near the Wash- 
ington Monument, they constitute a powerful voice. That demon- 
stration focused attention on their plight: the crusade against 
hunger in the United States now going on in Congress probably 
has come about as a direct result of the activities of this par- 
ticular "lobby." Nonetheless, those segments of our population 
most alienated from the system have in general the least likeli- 
hood of organizing and effectively influencing government 
through their lobbies. 

Our legislative process works when enough people want some- 
thing badly enough to try to influence the legislators directly 
or through their groups ; then something is usually done. If there 
is an effective and equally potent counterforce, then at least a 
compromise is obtained. 

The gun control movement of 1968 offers a good example. After 
the assassinations of Martin Luther King, Jr., and Robert F. 
Kennedy, a tremendous outpouring of support thundered for 
strong gun control legislation in this country. Influence was ex- 
erted upon Congress by large numbers of individuals writing 
directly to their Representatives and Senators, by organizations, 
both small and large, and through ad hoc groups like the Emer- 
gency Committee for Gun Control and the Committee for More 
Effective Firearms Control. This movement was countered by 
letters from individuals against strict gun control, from local 
gun clubs and organizations unsympathetic to gun control, and 
from the massive effort of the National Rifle Association. The 
result was a compromise bill which sought to satisfy both pres- 
sure groups. 

Similarly, there is now in evidence an accelerating grass roots 
movement for comprehensive tax reform. Letters on tax reform 
are flowing into Washington. Largely due to the 10 9f surcharge 
appearing on the 1968 tax forms, there was, in the first 3 months 
of 1969, an upsurge of mail to congressmen and to the executive 
all seeking change in the present tax structure. Letters to the 
Treasury Department and President in February alone number 



172 Report of the Task Force on Law and Law Enforcement 

1,930. 28 This figure represents the highest for this month or for 
any other month for this type of mail since a count was started 
in 1948 and there has been no letup. The press has taken up 
the cause with numerous articles on the subject. And Congress 
in 1948 and there has been no let-up. The press has taken up 
is already reacting. But opposition is also getting organized, 
and a compromise of some kind will undoubtedly be the result. 

In cases such as these, lobbying clearly makes a positive con- 
tribution to the American political process. A great deal of our 
legislation gets initiated because some group has drawn attention 
to the need for it. Lobbyists provide information and other serv- 
ices which are welcomed by governmental decision-makers. If 
information from lobbyists and lobby groups was, for some rea- 
son, unavailable to officials, they would depend largely on their 
own staff for information and ideas. The clash of viewpoints 
between contesting groups is not only informative; it is also 
creative. Lobby groups and lobbyists define opinion with a 
sense of reality and specificity which political parties, the mass 
media, opinion polls, and staff assistants seldom, if ever, can 
achieve. 

Lobbies, therefore, are necessary and useful, as well as in- 
evitable. But just as some groups, such as the poor, do not have 
effective lobbies : so also do some issues not have effective lobbies, 
issues such as the reform of Congressional procedures. 

CONGRESSIONAL REFORMS 

Several reasons can be given on why Congressional reform 
does not stimulate the formation of lobbies. For one thing, the 
average citizen especially the average youthful reformer has 
only an imperfect notion of what is wrong with the procedures of 
Congress and only a marginal attachment to specific, realistic re- 
form proposals. Opinion surveys show that the public wants 
proposals for change; 29 but citizens lack basic information and 
understanding about Congressional personnel or procedures. 
Every opinion survey ever taken on the subject indicates that the 
internal workings of Congress are a mystery to most Americans. 

Nor are the issues of procedure likely to catch the public's 
imagination in the foreseeable future. There is no instance within 
recent memory of strong public demands for reform of the struc- 
ture or procedures on Congress. Legislators may receive moun- 
tains of mail asking for the censure of one Congressman (Adam 
Clayton Powell or Thomas J. Dodd) ; they may perceive strong 
public demand for breaking a specific filibuster (as in 1964 and 
1965) ; but they hear relatively little from citizens concerning the 
enactment of a congressional "code of ethics" or the revision of 
the Senate cloture rule. 



Congress and the Public Will 173 

By the same token, opinion leaders have made little effort to 
create a public issue out of congressional reform. Mass media 
coverage of the problem is sketchy; and when newsmen deign 
to pay attention to the issue, their approach is often narrowly 
issue oriented or misdirected. Party platforms ritually pledge 
action to "modernize" Congress (although the Democrats ne- 
glected to mention the subject in 1968), but few politicians have 
found the issue fruitful enough to warrant much emphasis. Thus, 
there have been few efforts to raise public interest in reform. 
Indeed, as former Representative Donald Rumsfeld (R.-I11.) has 
remarked : "Congressional reform is an issue without a constitu- 
ency." 

This leaves reform of Congressional procedures for the short 
run, at least to the Congressmen themselves. And so long as 
there is little public clamor for change in Congress, it is unlikely 
that sufficient numbers of Senators and Representatives will 
be interested in "preventive maintenance" of the role of the 
national legislature in our democracy. 

A glance at the tangled history of the 1967 legislative reor- 
ganization bill will serve to illustrate the point. 30 The Joint 
Committee on the Organization of Congress was created in 1965 
and devoted the better part of two years to hearing witnesses 
and drafting its report. In 1967, the committee's omnibus reor- 
ganization bill passed the Senate after 6 weeks of debates and 
39 amendments (114 were proposed). The Senate-passed bill 
(S. 355) offered useful, but certainly not revolutionary, changes 
to tighten regulations on lobbying, to eliminate some patronage 
appointments, and to improve the hold of Congress on appro- 
priations measures. The heart of the bill was its "committee bill 
of rights," already referred to. 

Members of the Joint Committee were pleased with the Senate 
vote, but they had failed to reckon with the objections of the 
House leadership. Rather than referring the bill (S. 355) directly 
to the Committee of the Whole House for deliberation, the 
Speaker sent it to the Rules Committee, where it languished. 
Rules Chairman Colmer (D.-Miss.) held hearings for part of one 
day in April 1967, but held none after that. Rather than bringing 
the bill to a committee vote, a process of private negotiations en- 
sued in which the bill was stripped of key provisions. A number 
of House members, including Representatives Boiling and Udall, 
tried to rescue the measure, but the ultimate leadership-sponsored 
version was described by Representative Madden, co-chairman of 
the Joint Committee, as being "worse than nothing and would 
postpone the reform movement for the next 15 or 20 years." The 
leadership's version would have exempted House committees from 
major elements of the "committee bill of rights" and weakened 
the provision for minority staffing. It was partially this latter 



174 Report of the Task Force on Law and Law Enforcement 

issue that prompted a group of younger Republicans to charge 
publicly that the House leadership was smothering the bill. A 
group led by Congressman Rumsfeld staged a semi-filibuster on 
the House floor in the closing days of the 90th Congress to protest 
the bill's fate after the Rules Committee had voted in July 1968 
to defer action on the bill indefinitely. 

Advocates of the reorganization bill are increasingly confident 
that during the 91st Congress the Senate will again pass such 
legislation, if, as now seems possible, the House finally acts. 
The Legislative Reorganization Act of 1969 (H.R. 2185) notably 
avoids the issue of seniority, but it does call for a substantial 
modification in the procedures of the standing committees. This 
bill is a compromise which, although piecemeal, will do much 
to update the internal operations of the Congress. Whatever the 
outcome of this struggle, and whatever the merits of the posi- 
tions of the various participants, neither lobbies nor direct public 
pressure of any kind, it seems, will play a significant role. One 
may wonder what might be accomplished in our nation if some 
of the enthusiasm and energy now being poured into issues like 
ROTC on the campus and separate facilities for black stu- 
dents were redirected toward less dramatic, less emotionally 
satisfying problems like the congressional committee system. 



CONCLUSION 

The first maxim of democratic parliamentary procedure, in 
the words of the late Speaker of the House, Sam Rayburn, who 
served in the post longer than any other, is that "a determined 
majority can always work its will," whether in committee or 
floor deliberation. 31 Even such an elitist as Alexander Hamilton 
referred to "the fundamental maxim of republican government, 
which requires that the sense of the majority should prevail." 32 
Minorities must be accorded reasonable opportunities to present 
their case to colleagues and to the general public ; but to allow mi- 
nority rights to become the equivalent of minority rule is to frus- 
trate one of the principles of government which gives our sys- 
tem its legitimacy. 

Like other important institutions of the political order, Con- 
gress seriously needs procedural reforms to make it more respon- 
sive to the will of its own members and, hence, to the public will. 
The present crisis of confidence in our political institutions lends 
added urgency to these needs. Ultimately, the future role of Con- 
gress rests upon its ability "to stimulate continuous and critical 
thinking about change before change is forced upon it." 33 
Clearly, Congress must act to realize the substance as well as the 



Congress and the Public Will 175 

theory of majority rule, lest wide-spread public disaffection and 
cynicism produce an irreversible attrition of public support for 
Congress and the laws it enacts. 



REFERENCES 

1 U.S., Congress, Joint Committee on the Organization of the Congress, 
Organization of Congress, Final Report, Joint Res. 2, 89th Cong., 2d sess., 
1966, at 1. 

2 Art. 1, Sec. 2. See Wesberry v. Sanders, 376 U.S. 1 (1964) ; Welles v. 
Rockefeller, 394 U.S. 542 (1969). 

3 The movement for direct election of Senators is chronicled in detail in 
George Havnes, The Senate of the United States, Its History and Practices 
(Boston: Houghton Mifflin, 1938). 

4 Louis Harris and Associates, Washington Post, Jan. 6, 1964, at A-l. 

5 Louis Harris and Associates, Washington Post, Jan. 4, 1965, at A-l. 

6 Louis Harris and Associates, Washington Post, Jan. 22, 1968, at A-2. 

7 Louis Harris and Associates, Washington Post, May 8, 1967, at A-2. 

8 J. Sundquist, Politics and Policy The Eisenhower; Kennedy, and 
Johnson Years (1968), at 513. 

9 Woodrow Wilson, Congressional Government (New York: Meridian 
Books, 1956), at 69. 

10 I.e., a member's wishes are normally granted in direct relation to 
the seniority he has amassed. 

n See Nicholas A. Masters, "Committee Assignments in the House of 
Representatives," American Political Science Review 345-357 (June 1961). 

12 See, for example, John F. Bibby and Roger H. Davidson, On Capitol 
Hill: Studies in Legislative Politics (New York: Holt, Rinehart & Winston, 
1967), at 153-169. 

13 He was elected governor of his state in November 1968. 

14 George Goodwin, "The Seniority System in Congress," American 
Political Science Review 412-436 (June 1959); Raymond E. Wolfinger and 
Joan Heifetz, "Safe Seats, Seniority, and Power in Congress," American 
Political Science Review 337-339 (June 1965). 

15 Roger H. Davidson, Davie M. Kovenock, and Michael K. O'Leary, 
Congress in Crisis: Politics and Congressional Reform (New York: Haw- 
thorn Books, 1967), at 100-103. 

16 Richard Boiling, House Out of Order (New York: E. P. Dutton, 1964), 
at 241. 

i? Nelson W. Polsby, " 'Seniority System' Isn't All Bad," Los Angeles 
Times, Sept. 20, 1968, at II, 5. 

18 U.S. Congress, Joint Committee on the Organization of the Congress, 
Organization of the Congress, Final Report, Joint Res. 2, 89th Cong., 2d sess., 
1966, at 9. 

19 Quoted in Larry L. King, "Inside Capitol Hill : How the House Really 
Works," Harper's, Oct. 1968, at 67. 

20 Id. 

21 Norman C. Miller, "Updating Congress," Wall Street Journal, Mar. 27, 
1969, at 1. 

22 As long as the Senate considers itself a "continuing body" (unlike the 
House, which must organize anew every two years), then rules which are 
previously in force govern consideration of new rules changes. Hence, the 
biennial proposals for weakening the filibuster are themselves subject to 
filibuster. 



176 Report of the Task Force on Law and Law Enforcement 

23 Art. I, Sec. 5. 

24 Congressional Quarterly Weekly Report, Jan. 13, 1967 at 41. 

25 Quoted in Lindsay Rogers, "Filibuster Debate," Reporter, Jan. 8, 1959, 
at 21. Pros and cons of unlimited debate are discussed in George B. Galloway, 
The Legislative Process in Congress (New York: Thomas Y. Crowell, 1953), 
at 564-570. 

2 6 Robert Bendiner, Obstacle Course on Capitol Hill (New York: McGraw- 
Hill, 1964), at 113-114. 

2 ?/d. 

28 Treasury Department, Office of Tax Analysis. 

29 American Institute of Public Opinion, surveys in 1964, 1966, 1967, and 
1968. 

30 Progress of the bill is summarized in Congressional Quarterly Weekly 
Report, June 9, 1967, at 975-978. 

31 Quoted in Congressional Quarterly Weekly Report, June 7, 1963, at 87. 

32 Benjamin Fletcher, ed., The Federalist (Cambridge: Belknap Press, 
1961). 

33 Davidson, Kovenock, and O'Leary, supra note 15, at 170. 



CHAPTER 9 
THE FAMILY AND VIOLENCE* 



The family is the oldest institution, the basic unit of society, 
and certainly one of the most, if not the most, important hu- 
man institution. Entire civilizations have survived or dis- 
appeared, depending upon whether family life was strong or 
weak. Every society needs a family to produce children and to 
continue the human race; to provide for the protection and 
early training of infants; and to establish a division of labor 
in the ongoing challenge of survival. 

During our lifetime, we ordinarily belong to two families 
the first when we are children, the second when we are par- 
ents. One we are born into; the other we establish ourselves. 
These two experiences represent life's major activity from birth 
to death. 

The American family has clearly lost some of its solidarity, 
however. Once it was the source of cohesion and security, the 
unit of economic activity, the means of recreation and educa- 
tion. Today it is increasingly disrupted. Divorce rates rise, but 
are outrun by the incidence of marital conflicts. Parents, espe- 
cially working mothers, spend more time outside the home, 
and television changes the character of family recreation. A 
generation gap widens, as young people identify more with 
peer groups in colleges, dropout communities, and street cul- 
tures than with their own families. 

These changes do not necessarily signify a decline in the im- 
portance of the family. They do reflect the increasing pres- 
sures which the family is under but these stresses frequently 
stem precisely from the fact that more is being demanded of 
family life than ever before. Thus, as urbanization depersonal- 
izes human relationships, husbands and wives become more de- 
pendent upon each other for the satisfaction of emotional needs 
that were previously met outside of the family. And, despite 



*This chapter was prepared by James S. Campbell on the basis of a 
paper submitted by Shlomo Shoham, Director of the Institute of Criminal 
Law and Criminology, Tel-Aviv University, Israel, and on materials made 
available to the Task Force by Commissioner W. Walter Menninger, M.D. 

177 



178 Report of the Task Force on Law and Law Enforcement 

the impact of television, the family manifestly retains its cen- 
tral role in the upbringing of children. 

The family is, after all, the primary channel through which 
human culture is transmitted to the young of the species. The 
family and the home are the first molding cast for a child's be- 
havior and the basic unit for the child's "socialization." Values 
are inculcated by example, teaching and interaction. 1 It is the 
function of the family to transmit to the children what the 
prescribed, permitted and proscribed values of the society are, 
as well as to indicate what are acceptable and unacceptable 
means of achievement. In a culture, for instance, where violence 
in a commendable pattern of masculine behavior, the education 
of children in the family will include a permissive attitude to- 
ward violence. Conversely, if a society or distinct class within 
it prohibits over-aggression, the family experience will direct 
the children toward the solution of conflicts by other than violent 
means. 

The crucial role of the family in disposing a child to violence 
or non-violence is generally accepted. Whatever be the heredi- 
tary predisposition and the biological factors contributing to a 
child's development, the patterns of behavior of the child are 
largely established by his early life experiences. Any observa- 
tion of young children reveals the potential for aggressive be- 
havior, destructive behavior, temper tantrums, and the like. 
It is the challenge to the family to orient or socialize these crea- 
tures to a principle of operation whereby their impulses of a 
socially unacceptable nature are controlled. 

Of course, the ultimate development of any individual and 
his ultimate violence-proneness are the result of many factors. 
Crime and violence are the result of a complex interaction of 
individuals' biologies and life experiences. Criminologists have 
identified specific characteristics often associated with crime 
and violence, including social disorganization, cultural conflict 
resulting from migration, highly packed urban living, pov- 
erty, and other important elements. Nevertheless, despite the 
importance of these other factors, the family remains the first 
socializing agency to which the human being is exposed in the 
crucial formative years of his life. What, then is the ability of 
the family unit to instill a restraining, normative barrier against 
violence within the personality framework of the child? 

FORMATION OF THE CHILD'S MORAL PERSONALITY 

Personality growth and development is a complex process. 
The infant in the beginning does not have any conception of 
the values as expressed by society. The infant after birth is 
motivated by some basic drives to survive and to achieve 



The Family and Violence 179 

satisfaction and relief of tension through the satisfaction* of 
bodily needs. In addition, there are some basic psychological 
needs which include mothering, without which the infant will 
waste away. But the infant has no real conception or under- 
standing, or capacity to understand in adult logic what is hap- 
pening about him, or what the consequences are of his behavior. 

The early years of life are occupied with the maturation and 
growth of all the organ systems and the beginning mastery of 
body skills; i.e., learning to grasp, sit, walk, talk, control body 
processes. The discipline and control of children as they first 
develop these skills of body control and locomotion depend 
entirely upon the parents. The child of two or three has no 
specific moral controls, no sense of right or wrong except in 
terms of a self-related reference. Something is right if it pro- 
vides for his satisfaction and pleasure or relief of tension; 
something is wrong if it hurts him or causes pain. His response 
to something wrong is to attempt to retaliate or protest mightily. 
The basic moral law of the young child might be expressed in 
terms of the lex talionis, or an eye for an eye: "When I hurt, 
I want you to know I hurt, and I want you to hurt like I hurt. 
Therefore, if you hit me, I'll hit you back." 

Self-centered behavior of this character makes for anarchy, 
and increasingly, as the child grows, parental discipline sets 
certain limits. Gradually, the child learns that he cannot al- 
ways have what he wants when he wants it, and that there 
must be respect for other people if only for the reality that 
he is going to be hurt when he transgresses acceptable limits. 
The child tends to absorb within his personality the standards 
of those about him, with their "norms" (rules) for violence as 
well as other kinds of behavior. This process of socialization, in- 
corporating the parental and social values, is a process that 
evolves in varying degrees over the period of childhood. The ini- 
tial absorption is in a concrete and mechanical sense; the child 
complies with parental rules because the parents have the au- 
thority to back up those rules. In due course the child achieves 
an autonomous ethical system, tested through a process of trial 
and error, by which he weighs his conduct according to his 
own inner standards. 2 

Sigmund Freud, from his clinical observations, noted a crucial 
period in the incorporation of an inner value system in the 
child around the age of 5 or 6. This he related t<" t^p Drocess 
of the child's forming a more specific sense of identity as a 
boy or a girl, a process which also involves the child's de- 
veloping a sense of his role in the family. Freud also related this 
development to his observation of a process he characterized as 
the oedipal complex. Simply stated, the boy who has up to this 
point selfishly wanted to have the mother all to himself, is forced 



180 Report of the Task Force on Law and Law Enforcement 

to recognize that father has the inside track. Father is too big 
to be conquered in this competition, and therefore the young 
boy in effect operates on the principle that "if he can't beat 
'em, join 'em." In other word*, he fives u" competing with the 
father for mother, and instead identifies with father and makes 
father's values a part of himself. A comparable process takes 
place in the young girl. Essentia'ly, it is at this period of time 
that the child does develop an inner sense of rules, a conscience, 
a sense of right and wrong, and will then manifest some inner 
control which is not just related to parental correction. 

This is a continuing process that is refined as the child grows 
older, and it reoccurs significantly during adolescence as the 
young person retests society's rights and wrongs, and through 
social-role experimentation works toward establishing an iden- 
tity as an adult. 

In adolescence, sometimes, the adult values have to be chal- 
lenged and tested in order for the individual to prove that he 
has separate identity and is capable of independent action. 
This challenge to adult values may be done by an individual 
adolescent, but it is more commonly experienced as adolescents 
join together in groups or gangs. The gang membership pro- 
vides a sense of security and strength in numbers which per- 
mits a youth to act in a way that he could not act on his own. 3 
The gang in this sense, or the "street culture" as it has been 
called, provides a challenge to the family unit, but does so while 
rep ] acing the family security with gang security and in estab- 
lishing simple and consistent norms where values are sharply 
defined in black and white, without ambiguities. 

Adolescence, then, is a period of development crises, which 
if not overcome may result in a predisposition to crime, vio- 
lence, or deviance. This is not unlike the childhood diseases 
which everyone has to pass through but from which serious 
complications can arise. If the socialization in the family prior 
to or within this critical period has been faulty, there will not 
be any strong and clear normative barriers against delinquent 
solutions to life problems. 

Jean Genet, the thief, playwright and philosopher, de- 
picts with devastating sincerity the development of a crim- 
inal. Genet was born out of wedlock. His mother aban- 
doned him in his cradle, and he was cared for in his for- 
mative years by an orphanage, which in due course en- 
trusted him to a foster home, a peasant family in Le 
Morvan. He soon realized that he was not like the other 
village youngsters. He was a foundling, with no mother, 
no father, and therefore no clear identity to internalize. 
The village was a close community, and he soon found out 



The Family and Violence 181 

that in the peasant family he was "Jean, the little bastard," 
the receptacle for all the residuary, unwanted and despised 
attributes of the family and the small peasant community. 
When Genet commits a crime, he complies with the ex- 
pectations of his immediate environment. This in itself is 
satisfying. He is no more Jean the nameless bastard, he is 
Jean the thief. Moreover, the newly found criminal self- 
image is a course of strength and achievement: compliance 
with the image of a criminal gives Jean an individual iden- 
tity. Further, it makes him eligible for the group of other 
thieves and homosexuals, affording thus the opportunity 
for identification with a group and a sense of belonging. 

SOCIALIZATION IN THE FAMILY. 

The general scheme of socialization in the family may be 
presented as a "norm-sending" process by which the father, for 
example, transmits the rules of behavior to the family mem- 
bers. This process may be divided for clarity's sake into three 
phases : 

(1) Statement of rules: the father in our case states the 
desired behavior, verbally, by gestures, by some other mode 
of communication, or by his own behavior as a model for 
imitation. 

(2) Surveillance: by the father (or other members of 
the family) to ensure compliance to the rules. 

(3) Sanctions: applied for the infringement of the rules 
or for noncompliance to them. 

The sanctions may be either negative in the form of punish- 
ment for noncompliance with the rules, or positive in the form 
of rewards for conformity to the rules. The child on the receiv- 
ing end may conform to the norm for fear of punishment (sanc- 
tion orientation) ; he may be induced to conform by the re- 
warding sanction (identification) ; or he may absorb the norm 
very deeply within his personality structure so that conformity 
becomes "the right thing to do" (moral orientation). At this 
deep level of internalization, where the norm becomes a per- 
sonality element, surveillance and sanctions are essentially 
superfluous. 4 

The efficacy of the family norm-sending process and the 
depth to which the child absorbs these controls can be the cru- 
cial factor which tips the scale for or against violent behavior 
by the child. It determines the degree to which the child has 
internalized the restraining norm as a personality element and 
hence the force of the pressures which would be necessary 
to overcome or "neutralize" the restraining force of the norm 



182 Report of the Task Force on Law and Law Enforcement 

in order to commit an act of violence. Without taking into ac- 
count the factor of socialization within the family (or family 
surrogate), any explanation of violence (or any criminal, de- 
viant or rebellious behavior) is bound to remain incomplete. 

The starving Hindu has all the reasons (and all the pressures) 
in the world to slay one of the holy cows that roam the streets 
and fry himself a steak, but he would not dream of doing it 
because of the deeply internalized religious norm forbidding 
it. 5 The same idea is even more apparent in the actions of re- 
ligious dissenters, "freedom fighters," and rebels throughout 
the ages who have undergone extreme torture and death but 
have not acted contrary to their deeply internalized sets of 
norms. Research carried out in Israel on delinquent and violent 
gangs sought to discover why some boys, not distinguishable 
from the rest by socio-economic background, did not participate 
in the gang's delinquent and violent activities but only in its 
nondelinquent ones. The most significant differences between 
the two groups of boys was the degree to which the norms 
concerning the sanctity of private property and the nonuse 
of aggression were internalized to form an initial barrier 
against criminal and violent behavior. Similar differences aris- 
ing from different family socialization patterns help explain why 
even in the worst of slums plagued by poverty, bad living con- 
ditions, criminal gangs, prostitutes, and dope peddlers, only 
some boys become delinquent, whereas a far greater number re- 
main law abiding. 

Conflict situations, however, may make the whole process of 
norm-sending ineffective, so that the norm is internalized by 
the individual at a very shallow level or even not at all. Con- 
tinuing conflicts in the norm-sending process may also injure 
a set of norms that has already been previously internalized 
bv the individual. The greater the intensity and extent of con- 
flict situations in the socialization process, the greater will be 
the shift away from moral orientation toward sanction orien- 
tation, and from fully internalized rules to rules which are 
followed only out of fear of being caught. At this state the nor- 
mative barrier against a given crime or violent behavior is 
completely shattered, and the crime then is only in being 
caught and not in committing the offense. 

Adolescence the crucial stage in the norm-receiving proc- 
ess is characterized by, among other things, a yen for abso- 
lute values and a desire for sharply defined roles. As described 
by countless works of literature, youth is not only a seething 
cauldron of idealism, but also passionately in favor of un- 
equivocal statements of facts and rules otherwise known, by 
the young themselves, as plain honesty. 



The Family and Violence 183 

Gobesque, Balzac's stingy old scoundrel, sits before the 
fireplace with his teen-aged friend and promises him a 
loan without guarantees, because up to twenty a person's 
best guarantee is his age and 'because you, my young friend, 
are idealistic, you visualize great ideas, basic truths and 
beautiful Utopias while staring at the dancing flames. At 
my age, however, we see in the fireplace plain burning 
coal.' 

Those youths whose socialization is most riddled with con- 
flict situations are most liable to reject the offered adjustment 
to contradictory, hypocritical, and confused sets of norms. If 
this is adulthood, he prefers the more direct behavior and 
clearly defined normative system of the delinquent subculture. 
Because of his inability to internalize the contradictory norms 
of the adult world, he may be branded as "infantile " "rigid," 
"a permanent adolescent," "a troublemaker," and thereby be 
pushed further toward the values of his delinquent peers. 

CONFLICTS IN THE SOCIALIZATION PROCESS 

What are the kinds of conflict situations in the socialization 
process within the family which can have harmful effects on 
the creation of a normative barrier against violence ? 

The family "broken" by divorce, death, or prolonged or per- 
manent incapacitation of one or both parents was once con- 
sidered a major cause of delinjuency, but research has revealed 
that the broken home as such may not have the crucial signifi- 
cance that was attributed to it. 

Instead, continuous family tension and discord is a far more 
important factor in delinquency than the actual divorce of the 
parents. The rates of delinquency are significantly higher in 
unbroken but unhappy and conflict-ridden homes tn^n in 
broken ones. 6 Divorce may even lessen the chances of children 
in a tension-laden family from becoming delinquent or vio- 
lent. 7 A recent study published in Israel reveals that the most 
significant factor linked with delinquency was lack of value 
consensus among family members.* 

Lidz observes that a child properly requires two parents: a 
parent of the same sex with whom to identify and who provides 
a model to follow into adulthood, and a parent of the opposite 
sex who becomes a love object and whose love and approval the 
child seeks in return by identifying with the parent of the 
same sex. But, he notes, a parent can fill neither of his roles 
effectively if he is despised or treated contemptuously by the 
other parent. The child internalizes directives from both par- 
ents and identifies to a greater or lesser extent with both; if 



184 Report of the Task Force on Law and Law Enforcement 

the parent's personalities cannot be reconciled, a split may oc- 
cur in the child's personality as he attempts to relate to both 
parents but finds that efforts to satisfy one may elicit rebuff 
and rejection from the other. 9 

Another kind of conflict that impairs socialization in the fam- 
ily is that which arises from an external source and which 
injures the prestige of the norm-sender. Families in communi- 
ties that undergo rapid or sudden social change, especially 
immigrant families whose cultural tradition in their countries 
of origin is markedly divergent from the culture of the ab- 
sorbing community, may suffer socio-economic injuries which 
harm or even shatter the status of the head of the family. 
These types of conflict stem basically from "external" sources 
such as industrialization, urbanization, mass immigration, and 
social change, and they create conflict situations within the 
family between parents and the offspring, with a high prob- 
ability of injuring the prestige of the norm-source and thus 
hampering and injuring the norm-sending process. In Israel, for 
instance, this type of conflict has been proved a factor in weak- 
ening the cohesion of the family unit and thus shattering 
family control over the young. 

In the United States, the impact of slavery and segregation 
on the Negro family has often had a similarly debilitating effect 
on its ability to socialize its children. The shattering of family 
control typically results in the "street-culture" replacing the 
family as the primary norm-sender. The Kerner Commission Re- 
port has described the process well : 

The high rates of unemployment and underemployment 
in racial ghettos are evidence, in part, that many men living 
in these areas are seeking, but cannot obtain, jobs which will 
support a family. Perhaps equally important, most jobs they 
can get are at the low end of the occupational scale, and 
often lack the necessary status to sustain a worker's self- 
respect, or the respect of his family and friends. 



Wives of these men are forced to work and usually pro- 
duce more money. If the men stay at home without working, 
their inadequacies constantly confront them and tensions 
arise between them and their wives and children. Under 
these pressures, it is not surprising that many of these men 
flee their responsibilities as husbands and fathers, leaving 
home, and drifting from city to city, or adopting the style of 
'street corner men.' 



The Family and Violence 185 

With the father absent and the mother working, many 
ghetto children spend the bulk of their time on the streets 
the streets of a crime-ridden, violence-prone, and poverty- 
stricken world. The image of success in this world is not 
that of the 'solid citizen,' the responsible husband and father, 
but rather that of the 'hustler' who promotes his own inter- 
ests by exploiting others. The dope sellers and the numbers 
runners are the 'successful' men because their earnings far 
outstrip those men who try to climb the economic ladder in 
honest ways. 



. . . Under these circumstances,. many adopt exploitation 
and the 'hustle' as a way of life, disclaiming both work and 
marriage in favor of casual and temporary liaisons. This 
pattern reinforces itself from one generation to the next, 
creating a 'culture of poverty' and an ingrained cynicism 
about society and its institutions. 

A third kind of conflict situation is conflict between verbally 
transmitted rules and the actual behavior of parents. When par- 
ents pay lip-service to legitimate behavior but act contrary to 
these same norms, conflict situations are created. This phenome- 
non may help to explain some middle- and upper-class juvenile 
delinquency the so-called "good home delinquents." On deeper 
analysis these homes may not be all that good, for conflict of this 
kind may have entirely destroyed the legitimate norm-sending 
capacity of the family. 

Thus the parents may preach idealistic achievement, Christian 
love and spiritual values, but their actual behavior may be di- 
rected solely toward material achievement. Parents may preach 
law observance, but children may see their parents push their 
way up in the "rat race" or in the cutthroat competition for up- 
ward social mobility without being particularly scrupulous about 
the means used to achieve their coveted goals. The verbal rule 
may state that one's interests should be sacrificed to help others, 
but the way the parents behave reveals that their actual belief 
is "everyone for himself." Even if the children do not identify 
themselves with their parents' acts instead of with their verbally 
phrased norms, the norm-sending process is still hampered by 
the conflict situations created by the parents' preaching and 
teaching one set of norms and behaving according to another. 

Another and deeper kind of conflict between verbally trans- 
mitted rules and actual behavior of parents stems from the fact 
that adults, as grown children, still have within them some of the 
unresolved struggle of growing up which gets played up in rela- 
tionships to others in ways of which they may be unaware. Thus 



186 Report of the Task Force on Law and Law Enforcement 

there can be unconscious communications by adults which are 
perhaps in absolute contrast to their conscious intent. Some dra- 
matic work by investigators Johnson and Szurek demonstrated 
the degree to which children can present problems in behavior 
and be extremely difficult to manage due to a vicarious psycho- 
logical participation on the part of the parent who consciously 
decries the behavior of the child. It is this kind of conflict be- 
tween the consciously stated standards of the parents and their 
unresolved, underlying feelings about behavior such as violence 
and aggression that may prompt the youngster to act out the 
behavior as part of his relationship to the parent. 

A fourth kind of conflict which impairs socialization is incon- 
sistent or crudely punitive disciplining of children. Where sanc- 
tions are sporadic, erratic, and inconsistent, social conditioning 
does not take place and consequently the normative barrier 
against violent behavior is not formed. Too severe punitive sanc- 
tions are also detrimental to norm internalization. Some findings 
have indicated that unusually severe or harsh child-rearing 
practices are linked with poor and fragmentary norm internali- 
zation. 10 In like manner, too intense punishment is ineffective in 
suppressing undesired behavior. 11 A research finding which is di- 
rectly related to violence indicates that children who have expe- 
rienced rejection or extreme punitiveness from their parents are 
likely to show weak internalization of a sense of duty and re- 
sponsibility and have bad control over their tendencies for ag- 
gressive behavior. 12 

A survey of delinquent group members revealed consistently 
that their parents were usually punitive and rejecting. 13 Pro- 
fessor Kohlberg also finds that parents of delinquents tend to be 
more punitive than parents of nondelinquents, although they do 
not differ in extent of "firmness" of socialization and home de- 
mands. They are less warm and affectionate and more incon- 
sistent and neglectful than parents of nondelinquents. 14 Con- 
versely, the parents', and especially the mothers', warm and 
affectionate treatment of the infant enhance greatly the efficacy 
of socialization. Consequently, withdrawal of affection or the 
threat of it is the most durable and effective sanction. 15 Delay of 
reward is also found to be effective in suppressing undesirable 
behavior. 16 

Middle class families resort more to withdrawal of affection as 
sanctions in socializing their children, whereas the lower classes 
inflict more repressive punishment. 17 This difference may help 
explain the lower incidence of violence among middle-class youth 
whose socialization is presumably more effective. As a rule-of- 
thumb conclusion, then, aggressive parents breed aggressive 
children, whereas the subtle manipulation of rewards may help 
create an effective barrier against violence. 



The Family and Violence 187 

WHAT CAN BE DONE? 

In theory, we have many methods to prevent or to correct the 
effects of faulty, conflict-ridden socialization on delinquent and 
violent children. In practice, the effectiveness of most of these 
methods is limited by a number of factors. 

Child-guidance clinics and family counseling bureaus may ad- 
vise parents on desirable methods of child rearing and socializa- 
tion, but those who most need help are not the ones who seek out 
such services even where they are available and of high quality. 
Sometimes an influential aunt or grandmother, or even a teacher 
or priest, may succeed in socializing children with whom parents 
have failed. But the "extended family," with a large network 
of relatives surrounding the nuclear family and participating 
in the raising of its children, is increasingly disrupted by social 
and geographic mobility, and teachers and clergymen have less 
and less personal contact with families in today's society. 

It is a sad fact, but a fact nonetheless, that today for the most 
part we are taught how to be parents by our first-born children 
(and by occasional desperate forays into Dr. Spock). We go 
through a process of trial and error, and we don't really have 
much in the way of social institutions that help parents effec- 
tively learn how to be parents. This vital skill is not generally 
taught in the course of formal schooling, and this is one area 
where there could be a major step by building some effective 
training for parents into the formal educational process. 

Many institutions report some success in efforts to correct the 
faulty socialization of delinquents and criminals. The Highfield 
Institution for Delinquents and the Boys Industrial School of 
Kansas, which has an association with the Menninger Clinic in 
Topeka, Kans., exemplify such intensive treatment programs. 
Professor Ernst Popanek, who directed the Wiltwyck School in 
New York, tried to counter aggression by friendship, permis- 
siveness, and understanding which permeated the violence-prone 
boys' "total environment." Similar attempts have been carried 
out by Prof. Fritz Redl to ease the aggressivity of "children who 
hate" 18 at Pioneer House in Detroit, and by Professor Bruno 
Bettleheim at the Orthogenic School of the University of Chi- 
cago. In all these cases, aggressive and guiltless psychopathic 
children gained a fair measure of internalized guilt and their 
aggressivity declined. 

The crucial question, however, is whether society is prepared 
to foot the immense bill for this kind of psychiatric treatment of 
every violent child. Intensive psychotherapy is expensive and, 
when successful, may take years to achieve positive results. How 
many children may be accepted in the select and experimental 
institutions which offer this complex, elaborate, and costly 



188 Report of the Task Force on Law and Law Enforcement 

"milieu therapy"? Shouldn't the focus be on preventive strate- 
gies aimed at problem groups, rather than on corrective pro- 
grams of this type ? 

A bewildering multiplicity of factors are involved in any pre- 
ventive strategies, however. The ghetto Negro family, for in- 
stance, has tended to become matriarchal because of social in- 
fluences that can be traced all the way back to the practice of 
slave owners to break up families by selling their individual 
members. 19 Prevention of the deleterious effects that this family 
structure has on socialization entails nothing less than a virtual 
revolution in American attitudes, mores, and race relations. This 
revolution is probably taking place right now, but before it is 
carried through many more cohorts of violence-prone Negro chil- 
dren will be born into the slums of our cities. 

At the level of preventive individual treatment, the most severe 
difficulties are encountered. How can outside agencies detect 
violence-breeding socialization processes? Conflict-ridden sociali- 
zation leaves its scars on the personality of the child at a very 
early age, and it often manifests itself only in quite subtle modes 
of familial interaction. The aggressivity or violence may not 
erupt until years later. Moreover, assuming detection were pos- 
sible, how would we intervene? In America, even the rudest home 
is a castle, and even the most miserable family is a shrine. What 
agency would we dare let to trespass into this sanctuary when 
no law has been broken? 

Neither government nor any other institution of society can 
make a husband and wife create a relationship of love among 
themselves and their children ; they must do that on their own, 
as individuals. But government can at least try to create the 
conditions under which stable families can thrive. 20 It can make 
it possible for fathers to have jobs, and hence to have the self- 
respect that comes from being able to support a family. Govern- 
ment can act against hunger, disease, poor housing, and urban 
decay, thereby creating a humane environment in which humane 
personal relationships can develop. Schools can give hope to 
the young, and to the parents whose hope is in their children. 
Churches can awaken men and women to the moral and spiritual 
dimensions of family life. 

Given the velocity of change in our society, it is inevitable that 
family structures will come under increasing pressures. These 
pressures are likely to underscore the family's importance even 
more than at present; for the stability of man, and his ability to 
respond nonviolently to his life experiences, depend on the sta- 
bility of the family in which he is raised. The family, the central 
institution of human society, whose failure undermines all, can 
and must be strengthened by the operations of the other institu- 
tions of society. 



The Family and Violence 189 

REFERENCES 

1. Lyman C. Wynne, Irving M. Ryckoff, Juliana Day and Stanley I. Hirsch, 
"Pseudo-Mutuality in the Family Relations of Schizophrenics," in 
The Family, ed. bv Norman W. Bell and Ezra F. Vogel (Glencoe, 111.: 
The Free Press, 1960), at 573. 

2. Lawrence Kohlberg, Stac/e and Sequence: The Developmental Approach 
to Moralization (New York: Holt, Rinehart & Winston, 1969). 

3. Sophia M. Robison, Juvenile Delinquency (New York: Holt, Rinehart 
& Winston, 1960), at 81. 

4. John W. Thibaut and Harold M. Kelley, The Social Psychology of 
Groups (New York: John Wiley & Sons, Inc., 1959). 

5. Edwin H. Sutherland and Donald R. Cressey, Principles of Crimin- 
ology, 6th ed. (Philadelphia: Lippincott, 1960), at 195. 

6. Francis I. Nve, Family Relationships and Delinquent Behavior (New 
York: John Wiley & Sons, Inc., 1958). at 47. 

7. C. R. Shaw and H. D. McKay, "Social Factors of Juvenile Delinquency," 
National Commission on Law Observance and Enforcement, Report on 
the Causes of Crime, II (Washington, D.C.: Government Printing 
Office, 1931), at 276 et seq. 

8. L. D. Jaffe, "Delinquency Proneness and Family Anomie," Megamot, 
March 1962. 

9. Theodore Lidz, The Person: H^'s Development Throughout the Life 
Cycle (New York: Basic Books, 1968). 

10. Justin Aronfreed, Conduct and Conscience; the Socialization of Inter- 
nalized Control over Behavior (New York: Academic Press, 1968), at 
305. 

11. Id., at 203. 

12. W. McCord et al., "Familial Correlates of Aggression in Nondelinquent 
Male Children," 62 Journal of Abnormal and Social Psychology 79-83 
(1961). 

13. Albert Bandura and Richard Walters, Adolescent Aggression New York : 
Ronald Press, Co., 1959). 

14. Lawrence Kohlberg, "Development of Moral Character and Moral 
Ideology," in Review of Child Development Research, Vol. 1, ed. by Lois 
W. Hoffman and Martin L. Hoffman (New York: Russell Sage Founda- 
tion, 1964), at 383-433. 

15. Aronfreed, supra note 10, at 316. 

16. C. B. Ferster and J. B. Appel, "Punishment of S Responding in Match- 
ing-to-Sample by Time-Out from Positive Reinforcement," 4 Journal 
of the Experimental Analysis of Behavior 45-56 (1961). 

17. Aronfreed, supra note 10, at 318. 

18. Fritz Fedl and David Wineman, Controls from Within: Techniques for 
the Treatment of the Aggressive Child (New York: The Free Press, 
1954. 

19. Report of the National Advisory Commission on Civil Disorders (Wash- 
ington, D.C.: Government Printing Office, 1968), at 144-45. 

20. See discussion and recommendations concerning the family in The 
Challenge of Crime In a Free Society, at 63-66 (Washington, D.C. : Gov- 
ernment Printing Office, 1967) ; see generally the comprehensive review 
and bibliography in Rodman & Grams, "Juvenile Delinquency and the 
Family: A Review and Discussion", Appendix L of th^ Task Force 
Report on Juvenile Delinquency (President's Commission on Law En- 
forcement and Administration of Justice) (Washington, D.C. : Govern- 
ment Printing Office, 1967). 



CHAPTER 10 

THE PUBLIC SCHOOL AND THE 
CHILDREN OF POVERTY* 



Most children grow up to become constructive members of 
society, respecting law and settling their difficulties in peaceful 
and commonly accepted ways. Since violence and disrespect for 
law are evidently increasing, however, more and more attention 
is being given to the process by which children develop into 
responsible adults. Intensified efforts are being made to identify 
the experiences of children that assist, and those that hinder, 
their development as law-abiding citizens. Clearly, one of the 
most important institutions in this process is the school. 

The school furnishes children with a major introduction 
to the larger society beyond the immediate family, and it bears 
the responsibility for equipping children with the skills neces- 
sary to the achievement of a satisfying role in that society. 
Often it is, as the President's Commission on Law Enforcement 
and Administration of Justice observed, "one of the last social 
institutions with an opportunity to rescue the child from other 
forces, in himself and in his environment, which are pushing him 
toward delinquency." 1 

When the school is a place where children find that they can 
be successful and can experience just treatment, they develop 
respect for law and for habits in harmony with the regulations 
of their society. But when the school is a place where children 
fail or where they experience unjust treatment, they become 
frustrated, they reject society's values, and they are more likely 
to resort to violence in an effort to solve their problems. In 
America we have both kinds of schools, and the children of 
poverty are to be found primarily in the second kind. 



* This chapter is based primarily on materials submitted by Ralph W. 
Tyler, Director Emeritus, Center for Advanced Study in the Behavioral 
Sciences, Stanford University, and in part on research contributions sub- 
mitted by Jean D. Grambs, Professor of Education, University of Maryland, 
and George Jones, Director, Task Force on Urban Education, National 
Educational Foundation. 

191 



192 Report of the Task Force on Law and Law Enforcement 

PUBLIC EDUCATION TODAY 

Public education in the United States today enrolls more 
students, employs more teachers, and receives more financial 
support than ever before. 2 In 1966-67, American elementary 
schools enrolled 36 million children and employed more than 1 
million teachers; our high schools enrolled 13 million youth and 
employed over 850,000 teachers; and expenditures for that 
school year were $31.9 billion. These figures indicate genuine 
national accomplishment. 

The average American has spent much more time in school 
than his parents did: now 75% of our teenagers finish high 
school about the same proportion that finished eighth grade 
in 1929. In 1870 one-fifth of the white population and four-fifths 
of the Negro population were illiterate. Now only 2.4 percent 
are illiterate mostly older people and Negroes, Mexican- Ameri- 
cans, Puerto Ricans, or Cubans concentrated mainly in the 
South and in large cities. The gap in median years of schooling 
between whites and Negroes has fallen from 3.4 years for those 
born in 1901 or before to one-half year for those born between 
1942 and 1946, and it appears to be narrowing still further. 

The resources used to educate each pupil have also been in- 
creasing. In 1956 there were 27 pupils per teacher, now there 
are 24. Now 93% of our teachers have college degrees, com- 
pared to 78% in 1956. Expenditures per pupil in elementary and 
secondary public schools increased from $2.25 to $3.43 per day 
(in constant dollars) between 1954 and 1964. Comparative 
test results support the tentative judgment that this increased 
investment is paying off: American children in the sixties 
seem to be learning more than their older brothers and sisters 
learned in the fifties. 

Despite the clear accomplishments of our national educa- 
tional effort, however, two groups in our society continue to 
suffer acutely from poor quality in education: the children of 
the inner city and the children of rural America. 

Approximately one-fifth of the children in the United States 
do not attain the level of literacy required for available employ- 
ment. These educationally deprived children are heavily con- 
centrated among the urban and rural poor. In urban and rural 
slum areas, for example, 40 to 60% of the children in the sixth 
grade perform at the second grade level or below on achievement 
tests. A majority of the young men failing the Armed Forces 
Qualification Test, white and black alike, are brought up in 
poverty and half come from families with five or more children. 

Those young people from poor families who nonetheless do 
score well on achievement tests are much less likely to enter 
college than those who come from a higher socioeconomic level. 



The Public School and the Children of Poverty 193 

Only one-third of our more talented high school graduates (in 
the upper 60% in academic aptitude) will go on to college if 
their parents are in the bottom socioeconomic quarter of society. 
By contrast, 85% of the more talented children of parents in 
the top socioeconomic quartile will go on to college after gradu- 
ating from high school. 3 

Rural adults and youth are the product of an educational 
system that has historically shortchanged rural people. 4 While 
rural youth may be getting a better education today than their 
parents got, their level of educational achievement is still lower 
than for urban youth. In 1960 the average schooling for the 
urban population over 25 was 11.1 years, compared with 9.5 
years for rural nonfarm and 8.8 years for rural farm people. 
Rural students drop out of school sooner, and the percentage of 
those who go on to college after completing high school is much 
lower than for urban youth. 

Because of low teacher salaries, rural schools are not able to 
attract and hold the better teachers. Small communities have 
fewer high school teachers with five or more years of college and 
more elementary teachers without a college diploma. The per- 
centage or rural teachers not properly certified is about twice as 
high as for urban teachers. 

The facilities in many rural schools are equally depressing. 
In spite of considerable consolidation of school units, rural 
schools in general are smaller and less well equipped than urban 
schools. There are still about 10,000 one-room schools in this 
country mostly in rural America. Vast improvements have 
been made, but some of these small schools still have outdoor 
privies and are without running water. It is the products of 
these inadequate rural schools who inevitably migrate to the 
cities, propelled by economic necessity. They then become a 
potent force for disaffection and irrational violence. 

Inner-city schools are over-crowded, poorly equipped, under- 
staffed, and underfinanced. 5 Between 1951 and 1963 Chicago 
built 266 new schools or additions mainly in all-Negro areas. 
Yet in 1964 5 of the 8 all-Negro high schools and 4 of the 10 
integrated high schools had enrollments over 50 % above de- 
signed capacity compared with similar overcrowding in only 
4 of the 26 predominantly white high schools. In Detroit, 30 
of the school buildings still in use in inner-city areas were 
dedicated during the administration of President Grant. Negro 
pupils have less access to physics, chemistry, and language 
laboratories, and fewer books per pupil in their libraries. 

The schools attended by inner-city children are commonly 
staffed by teachers with less experience and lower qualifications 
than those attended by middle-class pupils. A 1963 study rank- 
ing Chicago's public high schools by the socioeconomic status 



194 Report of the Task Force on Law and Law Enforcement 

of the surrounding neighborhood found that in the 10 lowest- 
ranking schools only 63% of all teachers were fully certified 
and the median level of teaching experience was slightly under 
4 years. By contrast, in the 10 highest ranking schools, 90% 
of the teachers were fully certified and the median level of 
teaching experience was over 12 years. 

Despite the special problems presented by children entering 
the school system from disadvantaged backgrounds, our society 
spends less money educating ghetto children than children of 
suburban families. Twenty-five school boards in communities 
surrounding Detroit spent up to $500 more per pupil per year 
to educate their children that the city spent. Merely to bring 
the teacher/pupil ratio in the city in line with the state average 
would require an additional 16,650 teachers. In a study of 12 
metropolitan areas, the Civil Rights Commission found that in 
1950, in 10 areas the central cities spent more per pupil than 
the surrounding suburbs; by 1964, however, in only five areas 
did the central city spend more per pupil than the average 
suburb. The major reasons for this reversal are the declining 
tax base in the cities, and the increasing competition from non- 
school needs for a share of the municipal tax dollar. 6 

In addition to these inequalities, the schools to which well- 
to-do parents send their children, and the schools which are 
attended by the children of the poor in the inner city or in rural 
America are unequal for the apparently paradoxical reason 
that they offer essentially similar educational programs. The 
curriculum for the fearful, malnourished, linguistically different 
child is little different from that provided for the well-adjusted 
middle-class child from a supportive home environment. The 
result is effective educational inequality. 

Most middle-class students are supported by parents who 
reinforce the rules, methods, and goals of the schools. These 
parents provide quiet rooms for study, encyclopedias, expensive 
equipment for science fair projects, instruments for music, 
trips to libraries, and the like. Their youngsters are strongly 
encouraged to do well. If kindergartens are not provided by the 
school system as they generally are not in the South, for 
example, where low income rural families are concentrated 
conscientious middle-class parents pay for such preschool edu- 
cation. The parents themselves are a hidden subsidy of the 
whole process of education worth many thousands of dollars 
per student. 

The situation of children in the inner-city school or the schools 
in rural poverty is different. They have not had parents read 
to them, nor have they seen family or friends devote much time 
to reading. What they read in school is foreign to their home 
experience and their parents can take little interest in it. 



The Public School and the Children of Poverty 195 

Thus, where the middle-class mother will ask her child what 
he learned in school that day and encourage him to learn more, 
the ghetto mother may express more concern over his becoming 
a "troublemaker" in the eyes of his teacher. She chides her 
child: "Don't get into trouble! Don't do anything to make the 
teacher mad!" By taking this "antidelinquency" approach, she 
encourages her child to avoid active involvement in learning 
and simply to become passive. Similarly, the poor rural parent 
may want his child to get a good education so that he can get a 
good job but the parent often places little value on the sub- 
stantive content of the learning as such. 

THE CHALLENGE TO AMERICAN EDUCATION 

Children from homes of poverty belie our boast that we have 
universal education and equal opportunity for all. The greatest 
challenge to American education today is to find effective ways 
of helping the children of poverty learn the basic intellectual 
skills so that they can be more successful in school and compete 
more successfully for jobs and rewarding positions in the com- 
munity when they become adults. 7 More than ever before, 
citizenship in our society requires education for adequate under- 
standing of government and public problems, and for construc- 
tive family life and individual development. 

The uneducated child and the poorly educated youth are not 
promising assets in a modern technological society. At the 
turn of the century farm labor constituted 38% of the labor 
force; now it is less than 7 percent. Unskilled labor represents 
less than 6 percent of the labor force and, as with farm labor, 
the proportion continues to decrease. Meanwhile, the demand 
for educated people in the professions, the service occupations, 
management, engineering, and science exceeds the supply. 

How can we meet the educational challenge which the children 
of poverty represent? 8 

Congress has recognized the imperative need for educating 
disadvantaged children by boldly and responsibly offering cate- 
gorical aid to schools having a concentration of children from 
homes of poverty. Title I of the Elementary and Secondary 
Education Act of 1965 authorizes approximately $1 billion of 
federal funds for this purpose. Unfortunately, however, the 
majority of the efforts by schools receiving these funds have so 
far not been effective. Several reasons can be given for these 
failures. 

In the first place, the added resources are wholly inadequate. 
For the child of poverty to overcome the disadvantages of his 
home and acquire the language habits needed to cope with a 
sophisticated, urban environment and a positive attitude toward 



196 Report of the Task Force on Law and Law Enforcement 

his own potential as a learner requires major changes in school 
programs and practices that cannot be effected by expenditures 
of only 10 or 15 percent more than the ordinary school 
expenditures. 

The inadequacy of federal financial support is critical. The 
local school or even the state cannot effectively secure the neces- 
sary financial resources. The property tax, which has been the 
traditional source of local support for education, can no longer 
be increased in most localities. Furthermore, when it is used 
as a local revenue base for supporting education, it guarantees 
inequality in educational opportunity, since the poor are most 
likely to be found in districts where the assessed valuation of 
property is the lowest. The current efforts to increase the pro- 
portion of school funds provided from state revenues have 
helped improve the financial situation in some states, but there 
are also great inequalities among the states in the available 
revenue-resources per pupil. For example, in 1967-68 the state 
and school districts of Mississippi levied a greater proportion 
of the total state income to raise the $413 per child spent on 
education than did New York State to obtain the $1,125 which 
was its average cost per child. Any large-scale reduction of 
inequalities throughout the nation can be achieved only through 
greatly increased federal contributions to the financial support 
of education within the states. 

A second reason why federally-supported efforts have largely 
failed to improve the education of the poor is that most of these 
efforts have focused on children from 6 to 17 years of age 
yet the children who are disadvantaged in the first 3 or 4 years 
of life fall farther and farther behind as they go through school. 
In the metropolitan Northeast, for example, Negro students on 
the average begin the first grade with somewhat lower scores 
than whites on standard achievement tests, are 1.6 grades behind 
by the sixth grade and have fallen 3.3 grades behind white 
students by the 12th grade. As we have noted, the influence 
of the home, especially in the first years of life, can be decisive 
for the child's success or failure in school. 

What is required is the early provision of a supplementary, 
educationally supportive environment for the children of poverty 
people to read to them, converse with them, stimulate their 
curiosity, assist with their health and nutrition needs : in short, 
preschool programs like Head Start, only on a much expanded 
scale and better integrated into the total school system. Last 
year only about 220,000 children were enrolled in the full-year 
Head State program; yet there are about 2*4 million children in 
the 3 to 5 age group from homes with extremely low incomes. 
Moreover, when the children leave the progressive learning 
environment of programs like Head Start, they often go into 



The Public School and the Children of Poverty 197 

a traditional, restricted elementary school system that does not 
provide for continued development. 

A third reason why we are not succeeding in our modestly 
larger efforts to educate the children of poverty is that we have 
failed to arrange for the necessary major modifications of the 
school setting, the school program, and the kinds of personnel 
employed. Our traditional pattern of education is simply not 
effective with disadvantaged children and youth for whom the 
school bears essentially the entire educational responsibility. 
Yet most of our programs and projects have made only minor 
modifications in the traditional pattern. 

At the high school level, for example, adolescents from affluent 
homes as well as poor ones too often perceive little or no con- 
nection between the educational content of the school and their 
own concerns. Because they do not see the relevance of the 
high school to their present and future lives, they often ignore 
the learning tasks assigned. They turn their attention to other 
things such as athletics, social activities, artificial stimulants, 
or they may become quiescent, enduring the school routine until 
they can drop out. This problem has been recognized by many 
secondary schools over the years, but the steps taken have not 
been adequate to solve it. 

In an effort to provide a meaningful and relevant program 
for the student, some schools have broadened the offerings of 
the curriculum, but within the same framework, so that the 
new courses were also outside the real concerns of the student. 
The history of Africa can be as lifeless as the history of Colonial 
America if both are seen as little more than a series of remote 
events to memorize. Other efforts to attack the problem have 
often been based on the assumption that the root of the difficulty 
was in the boy or girl, not in the school and its program. Hence, 
the focus has been on such strategies as counseling, without 
making any basic shift in school attitudes and practices. 

What is required is basically the development of a close and 
active relationship, not simply a formal one, between the school 
and the responsible adult community, so that the student will 
be confronted by questions and problems outside the school that 
can be attacked only by what he learns in school. The school 
must be brought out of isolation. The emphasis must be upon 
learning what is relevant to the student's life, not upon grades, 
credits, and other artificial symbols. We must make a major 
effort to furnish high school students with significant adult 
activities job programs, community service corps experience, 
work in health centers, apprentice experience in research and 
development, and in staff studies conducted by public agencies. 
We must redesign the high school to open it to the community 
and to utilize many different kinds of persons in education. 



198 Report of the Task Force on Law and Law Enforcement 

The school will need to serve a wider range of ages and allow 
students to vary the amount of time devoted to studies. In 
this new interaction of school and community, "learning on 
the job" will not substitute for learning in school; rather, the 
job will present the youth with the challenges which he must 
meet by learning in school. 

The kind of education described here has been shown to arouse 
greater interest and effort in many students than classroom 
study alone, to increase student understanding of the subjects 
studied, and to develop maturity of responsibility and judgment. 
Community service corps experience such as that developed by 
the Friends Service Committee has been found to arouse in many 
students greater motivation to learn and to develop social skills, 
social responsibility, and maturity of judgment. Communities 
have constructed the Neighborhood Youth Corps program to 
serve a similar purpose with young people from backgrounds of 
poverty and limited opportunity. The involvement of a broad 
range of people in the educational activities of youth has proved 
helpful, as has the provision of a variety of patterns to include, 
in addition to full-time enrollment, part-time school attendance 
while holding full-time or part-time jobs, and enrollment in 
high school, full time or part time, after a period of work, 
military service, or other activity. This varied pattern or ex- 
perience and competence can be utilized constructively in an 
institution open to the community, whereas it is likely to be a 
handicap to a school operating in isolation, with study confined 
to textbooks and related materials. 

An educational strategy of this kind obviously requires more 
than money though it will require that in greater amounts 
than our society has heretofore provided. New institutional 
arrangements and new personnel will be needed : job coor- 
dinators, a community service corps, new means of certifying 
educational achievement. Changes will have to be made in child 
labor laws and in practices of employers and labor organiza- 
tions. Teachers will have to be recruited differently, trained 
differently, and utilized differently. New curricula will be 
needed, with new instructional materials. Governors and legis- 
latures will have to be furnished with more adequate staff to 
help them carry out their educational policy-making responsi- 
bilities. None of these manifold requirements will be easily met. 

In sum, the educational problems of disadvantaged students 
and increasingly of advantaged students as well cannot be 
solved successfully merely by doing more of what has been done 
in the past or simply by concentrating greater effort on the 
same activities. New approaches must be found. 



The Public School and the Children of Poverty 199 

CONCLUSION 

The failures of the children of poverty in our schools are not 
inevitable. Schools serving poor families can contribute to the 
development of adults who respect law and find a constructive 
role in society. 

Today the schools of the inner city and of rural America 
are not accomplishing this task and in the ghetto, rates of 
violent crime are 10 to 20 times what they are in the suburbs, 
while poor rural areas, especially in the South, are the locus 
classics of the "forgotten man" with his often violent hostility 
toward Negroes and his alienation from government. 

Our nation stands, as it were, in the schoolhouse door: 
either we will stay where we are, preventing the children of 
poverty from entering into the educational process, or we will 
go forward, taking these children inside new and better schools 
to true educational opportunity. 



REFERENCES 

1. The Challenge of Crime In a Free Society (Washington, D.C.: Govern- 
ment Printing Office, 1967), at 69. See generally id. at 69-74 and Ap- 
pendices M and N of the Crime Commission's Task Force on Juvenile 
Delinquency (Washington, B.C.: Government Printing Office, 1967). 

2. Toward a Social Report (Washington, B.C.: Bepartment of Health, 
Education, and Welfare, 1969), at 65-72. 

3. Id., Table 3, at 21. 

4. Report of the President's National Advisory Commission on Rural 
Poverty (Washington, B.C.: Government Printing Office, 1967), at 41 
et seq. 

6. Id. at 435. 

7. Toward a Social Report, supra note 2, at 70. 

8. Tyler, "Investing in Better Schools," Agenda For the Nation, Washing- 
ton, B.C., Brookings Institution, 1968. 



CHAPTER 11 
THE CHURCH AND THE URBAN CRISIS* 



The relation of the Church (or Churches) to violence is no 
less complex than the relation of organized society in general 
to the problem of violence. A common impression holds that 
the Church, standing for what is good and holy, must be op- 
posed to violence and must uphold public order, and this view 
leads in turn to the judgment that the contemporary increase 
of violence indicates a failure of religion, a failure of the 
Churches. Consequently, it is argued, if the Churches could be 
made more "relevant" to contemporary life, order would be 
increased and violence diminished. 

These common-sense impressions oversimplify the issues of 
order and violence and run the risk of obscuring the function 
of religion and the Churches. As Samuel Klausner has pointed 
out in great detail in a paper submitted to the Commission's 
Task Force on Individual Acts of Violence, religion often pro- 
vokes and supports violent behavior. It is often disruptive; 
prophets are generally disturbing people. 

Furthermore, as Klausner has vividly described, religion 
can become associated with the interests of a dominant group 
in society and be used to reinforce these interests to the detri- 
ment of the poor, the underprivileged, or the oppressed. Marx 
could marshal considerable historical evidence to support his 
charge that religion is the opiate of the people. By contrast, 
religion can also be the rugged basis for survival against op- 
pression, as in the case of Irish resistance to England. Any dis- 
cussion of the relationship of religion or the Churches to the 
maintenance of order or the curtailment of violence must be 
thus kept carefully within the perspective of the total function 
of religion in society. 

The problem which the Church faces is not whether it will 



*This chapter was prepared by Joseph P. Fitzpatrick, S.J., Professor 
of Sociology, Fordham University, based in part on research contributions 
by the Rev. Donald W. Seaton, Jr., Director, Center City Hospitality 
House, San Francisco, and Prof. J. Archie Hargraves of the Chicago Theo- 
logical Seminary. 

201 



202 Report of the Task Force on Law and Law Enforcement 

induce or maintain order, but rather what order will it main- 
tain and to whose advantage? In relation to the urban crisis 
specifically, it is clear that the Church has supported a public 
order which favors the affluent rather than the poor; in this 
sense, it has appeared to be "not relevant" to the urban crisis. 
On the other hand, the Churches are probably the only institu- 
tions in American society which will be heard with some confi- 
dence if they seek to clarify the common values which can 
bind the people of the nation together and form the basis on 
which a general harmony and order might be built. 

The Churches in the past have been the institutions which 
provided a sense of security and solidarity which contributed 
to the adjustment of immigrant people to the United States. 
Perhaps they can still fulfill this function and at the same time 
help their people transcend ethnic isolation and develop a sense 
of higher unity in the nation. Especially in recent years, the 
Churches have developed the ability to achieve cooperation and 
understanding on common values despite the particular values 
on which they differ, and they may be able to project this skill 
to the nation at large. 

LACK OF "REVELANCE" TO WHOM? 

In the 19th century, stable urban neighborhoods had formed 
in American cities around churches, parishes and congregations. 
The Church grew with immigrant people as a central focus of 
their social life, a symbol of their identity, and the basis for 
that ethnic solidarity which enabled the immigrants to move 
with strength into the mainstream of American life. Indeed, 
an imaginative historian could write the history of American 
people by writing the history of their relationship to their 
churches. The Church not only integrated the lives of its mem- 
bers, it also served as an intermediary institution to link the 
lives of the congregation to the larger institutions of the entire 
society. Religious identity became an important factor in polit- 
ical life: it identified the loyalty and reliability of candidates; 
it was a sign of common interests; it suggested the support 
of common values. 

This position of the Churches was not always achieved or 
maintained without conflict and violence. As the symbol of dif- 
ferent and conflicting interests, religion often became the point 
around which hostility crystallized and which justified the de- 
fense of particular interests in the name of God. The violence 
which the Catholics have suffered at the hands of Protestants 
is a sad feature of American history. But there was also serious 
conflict between German and Irish Catholics, between French 



The Church and The Urban Crisis 203 

Canadian and Irish in New England, as there is now between 
older Catholic immigrant groups and Puerto Ricans in New York 
or Mexicans in the Southwest. Tension and conflict between 
Christian and Jew have likewise been a troublesome feature of 
American urban life. The positive social function which religion 
played as the basis for group identity and solidarity thus be- 
came quite disfunctional as the basis for the defense of con- 
flicting interests. Nevertheless, continuing efforts at peaceful 
co-existence tended to reduce the hostility, and neighborhoods 
continued in relative peace around the churches or parishes or 
congregations which identified the ethnic groups of the nation. 

But conflicts continued to occur when newcomers moved into 
the areas of these parishes or congregations, threatening the 
older residents' stability, social solidarity and the sense of man- 
aging their own lives. This movement is never a simple "inva- 
sion," but rather a complicated process of neighborhood change. 
But it reaches a point when the older residents feel invaded 
and either set up hostile resistance or flee from the area to the 
suburbs. As part of this process, established churches or par- 
ishes are pressed by financial needs and traditional loyalties 
to seek to maintain contact with and relevance to the more 
affluent people who have fled, rather than to turn imaginatively 
to the service of the newcomers. As a consequence, they often 
give the impression at a particular point in time of pursuing 
their own vested interest in survival rather than becoming rele- 
vant to the needs of the poor. 

This displacing and replacing takes many different forms. 
Most of the fashionable Protestant congregations in New York 
City have a suburban membership. In some Italian Catholic par- 
ishes, half the burials are of people who had left the area, but 
who have kept their ties to it until their deaths. This phe- 
nomenon can happen to Negro as well as white congregations. 
The Capitol Hill residential area was long a squalid Negro 
ghetto. Negroes who succeeded professionally or economically 
left the area, but returned regularly to worship in the Church 
in the neighborhood from which they themselves had moved. 

Should violence occur in such areas as these, the Church will 
be helpless to intervene, having no links with the new popula- 
tion, or it may become itself the target of attack as an institu- 
tion of a social group alien to the residents of the area. In 
relation to situations of urban tension, conflict or violence, 
therefore, there are two distinct populations to which the effort 
of the Church must be directed: to the newcomers, and to the 
older members of the congregation, both those who have moved 
to the suburbs and those who have remained in the inner city. 
How does the Church become "relevant" to both in such a way 



204 Report of the Task Force on Law and Law Enforcement 

that order with justice and dignity may be promoted, and vio- 
lence contained ? 

THE CHURCH AS BRIDGE-BUILDER 

The Churches can become relevant to the new populations in 
the inner city by doing for them what they did for the former 
residents, by becoming the focus around which a sense of 
identity and social solidarity can develop. Many of the black 
Churches already fulfill this role; the white Churches, and 
particularly many white priests or ministers, who have become 
relevant to inner-city people and issues, have to some extent 
achieved it also. Father Groppi in Milwaukee ; Father John Powis 
in the Ocean Hill-Brownsville section of Brooklyn ; the work that 
Father Harold Rahm started among the Mexicans at Our Lady's 
Center in El Paso ; the East Harlem Protestant Parish ; the work 
of Monsignor Robert Fox among the Puerto Ricans in New York 
these are all examples of situations in which white clergy- 
men have won the confidence of black, Mexican, or Puerto 
Rican people, and have become the basis for a sense of com- 
munity, of social solidarity, of personal worth. 

In situations like these, however, when conflict arises, the 
churches or the clergymen identify with the position of the 
underprivileged and frequently find themselves in conflict with 
older residents or parishioners. Thus Father John Powis became 
a very controversial figure during the turmoil about the Ocean 
Hill-Brownsville experimental school district, and Father Groppi 
is a fighting word in middle class conversations. It is for- 
gotten that in these conflicts men like Powis and Groppi are 
simply doing what the Church regularly did in relation to its 
immigrant parishioners when they were poor and underprivi- 
leged. It became the basis for loyalty and solidarity, and pro- 
vided deep religious motivation for a struggle which immi- 
grants defined as a struggle to preserve their own values or 
promote their legitimate interests. 

Moreover, in fulfilling this function, the churches and the 
clergymen are not simply centers of rebellion or protest. They 
provide an extraordinary link between the struggling newcom- 
ers and the larger society; they are an effective channel of 
communication ; they are a source of confidence to the new- 
comers as they approach the larger society, and to the larger 
society as they seek to approach the newcomers. Troublesome 
and turbulent as they may sometimes be, these active clergy 
serve as bridge builders between the old and new. 

If the Church really succeeds in becoming the basis for a 
strong, stable, self-confident comunity, it is effectively pre- 



The Church and The Urban Crisis 205 

paring the way for a more orderly society. "One integrates 
from a position of strength, not from a position of weakness" 
is a well-established sociological principle. If the newcomers 
succeed in creating strong communities, the process of integra- 
tion should move forward much more strongly. This is a long- 
range goal, and there are no simple, immediate evidences of 
its achievement. But community building represents one of the 
most important ways in which churches have been relevant in 
the past, and are likely to be relevant at the present. 

Of course, the achievement of a strong sense of community 
in and around the Church creates problems for the Church's 
relationship with former residents, or members of the congre- 
gation. Part of the resistance of former established residents 
to the newcomers is due precisely to the fact that a strong 
sense of comunity solidarity and identity had been developed 
among them. They do not wish to lose this; yet the approach 
of newcomers is generally perceived as a threat to the sense 
of identity which the older residents had always been taught 
to consider a strong social value. For example, many Italians 
in New York City who have forged a strong community around 
their Church raise the question: "Why is it wrong for us to 
seek to retain the community solidarity which the in-coming 
blacks and Puerto Ricans are striving to achieve?" Will the 
churches, by identifying themselves with the newcomers, inevi- 
tably alienate all others ? 

This question raises the challenge of a genuine pluralism, 
in which the newcomers could have their own identity and 
sense of community, but in such a way that it does not prevent 
their achieving a unity and cooperation on a higher level with 
other groups which also have a sense of identity and commu- 
nity solidarity. Religious groups such as churches or parishes 
are probably the only institutions by which culturally differ- 
ent groups, or conflicting or alienated groups may be brought 
to some sense of unity. Repeatedly in the past, the religious 
group has been able to bridge the gap between different social 
classes, different ethnic groups, different interest groups, by 
forging a common bond around common religious beliefs and 
practices. Thus, in the celebration of the liturgy, rich and poor, 
educated and uneducated, the powerful and the underprivileged, 
have frequently been able to celebrate the common beliefs in 
which they were one, despite the many differences which di- 
vided them. These different groups may have interpreted the 
common beliefs in different ways, and perhaps found different 
meanings in the celebration of the liturgy, but the deep and 
convincing common bonds were there. All accepted the belief 
that men are the children of God and this belief provided a 



206 Report of the Task Force on Law and Law Enforcement 

fulcrum toward unity which would have been much more diffi- 
cult to achieve if no such common belief existed. 

Furthermore, despite the alienation of former established 
parishioners, the churches and parishes are more likely than 
any other groups to enjoy the confidence of the former parish- 
ioners. Traditionally, these parishioners depend on the churches 
to defend the ultimate values of their lives. If their religious 
teachers assure them that these new neighborhood or commu- 
nity developments are not a destruction of their basic values, 
their confidence in their religious leaders may bring them to 
some understanding of the social changes they see around 
them. The simple fact that the Church teaches this understand- 
ing does not mean that members of parishes or congregations 
will thereby accept it. They often resist strongly. But the 
Church can lay claim to a confidence that probably no other 
institution has. 

For example, in the matter of black power, it is important 
for members of religious groups to perceive the fundamental 
religious inspiration beneath the black striving toward dignity 
and justice. The alienation of the black people from white reli- 
gious groups is part of the total black effort toward identity, 
self-reliance, self-respect, and community strength. Unity of 
black and white in its traditional form will not be possible on 
a large scale in the near future. Whatever unity of black and 
white does emerge, or whatever involvement there may be of 
white churches or white religious ministers in black move- 
ments, it will develop along terms which the black people will 
set. It is important for the churches to interpret the religious 
basis of much of the black power movement for their white 
parishioners. The presence of so many black religious leaders 
in the movements of the black people for justice cannot fail 
to impress religiously minded people. 

The presence of black religious leaders such as Martin Luther 
King has been important in preventing or moderating violence. 
The impressive and widespread non-violence of the black 
Americans should be an inspiration for a similar non-violence 
among white people in the presence of the struggle of black 
people for justice. And the Churches and congregations are the 
institutions best suited to emphasize this. The danger of vio- 
lence in the white reaction to black non-violence is a constant 
threat to peace. Violent reactions may be contained among 
white Americans if the Churches will continually call attention 
to the religious character of the black movement, and empha- 
size that religious values which blacks and whites share to- 
gether are the motivating force beneath much of what the 
blacks are doing. 



The Church and The Urban Crisis 207 

Another example of the importance of common religious val- 
ues and their role in building understanding and cooperation 
can be seen in the widespread support of the strike and boy- 
cott of the grape pickers in California. Cesar Chavez, the Mexi- 
can-American who is organizing these Mexican farm workers, 
has given a decidedly religious tone to his organizational efforts. 
The workers and pickets march under the banner of Our Lady 
of Guadelupe, and although Chavez has no hesitation about 
being involved in conflict, he uses the great religious symbol 
of the Mexican people to strengthen the solidarity of his own 
men and to provide a motivation for nonviolence. Many of 
the Churches and religious leaders around the nation have 
called attention to these significant features of Chavez' cam- 
paign with the result that it has enjoyed extraordinary sym- 
pathy among large segments of the middle-class community 
who sense a bond of unity in the religious values evident in 
the struggle of the Mexican workers. 

It is precisely this role as bridgebuilder, as intermediary 
between the poor and the affluent, between white and black, 
between the newcomers in inner city neighborhoods and the 
older residents who have fled, that the churches are eminently 
suited to fulfill. Unless the resolution of these urban conflicts 
is going to be left to sheer pragmatic accommodation, it is essen- 
tial that some common values be emphasized as the basis for 
understanding and cooperation between the many levels of 
people in American cities. And the Churches bear the greatest 
responsibility for asserting and emphasizing these common 
values. 



NATIONAL CONSENSUS PLURALISM AND ECUMENISM 

The assertion of common values between newcomers and older 
parishioners is the local dimension of the much larger problem 
of national values in relation to violence. Just as the churches 
can play an important role in asserting the common values 
which are the basis of understanding and cooperation in neigh- 
borhood or city, so also can they play a significant role in 
seeking to assert the basic values on which the unity and soli- 
darity of the nation can be based. This latter role is obviously 
much more complicated and difficult, but unless there is a sense 
of common values among the citizens of the nation, and a con- 
fidence that these values are secure, it is doubtful that violence 
can be avoided. In essence, this is the problem of national con- 
sensus, and national consensus feeds back into local consensus. 
If there is a sense of confidence in the acceptance of common 
national values, it will be easier for the churches to assert 



208 Report of the Task Force on Law and Law Enforcement 

these values among people in suburbs, cities, and neighbor- 
hoods. 

In the effort to promote the common acceptance of values 
and goals, two significant features of the religious experience 
of the United States support the hope of favorable activity by 
religious groups in this role. In the first place, the experience 
of religious pluralism in the Nation has developed a tradition 
of understanding and accommodation among religious groups. 
Differences have been serious, and hostility often present, but 
there has also been a strong and growing tendency to examine 
religious differences and differences of values with a high de- 
gree of intelligent objectivity. Religous groups, probably more 
than any others, have been schooled in the art of accommoda- 
tion. They have learned to pursue their own particular values 
in the presence of conflicting values. Through controversy and 
conflict they have learned the skill of recognizing areas of 
agreement and common values which would enable them to 
live together despite the differences. This American religious 
style has developed attitudes and skills which can flow over 
into other areas of life and influence the development of a 
similar style in the wide range of national events in which 
the danger of conflict is present. 

A second promising feature of religious experience is the 
spirit of ecumenism which has developed remarkably in the 
past few years. This spirit has emerged from a large number 
of sources, but one especially significant souce has been the 
recognition by all the churches that their common values are 
far more important at this moment in history than their dif- 
ferences. In other words, in the presence of a general challenge 
to the fundamental beliefs of all religious groups, the impor- 
tance of differences between the religious groups diminishes in 
perspective. Religious groups which face a rapidly increasing 
number of men who deny that God exists are not as likely to 
pursue conflicts about differences in doctrines about sacraments 
or sacrifice as they would if there were not such a large num- 
ber of non-believers. This increasing effort of religious groups 
to clarify and assert the fundamental religious beliefs around 
which there is agreement, and to accommodate their differ- 
ences in the context of agreement, has brought the religious 
groups to a point where they can be a major influence for 
unity in American life. This same spirit of dealing with differ- 
ences of values and interests in a context of striving for agree- 
ment is directly related to many of the value differences which 
have troubled American life. Ecumenism is one significant sign 
that we have reached a new level of maturity and mutual 
respect in managing them. 



The Church and The Urban Crisis 209 

If the experience with pluralism and ecumenism can be prop- 
erly exploited, it should enable the churches to convert a sense 
of identity and solidarity into a strong basis for a generous 
and open attitude toward others. Emphasis on common beliefs 
and common rituals should lead to more vigorous efforts at 
mutual respect and understanding. 

Particularly important in this regard is the value of repent- 
ance. Repentance is a fundamental religious value in all churches 
and one which is frequently ritualized on particular days and 
periods of penance. The need for penance for the long years of 
injustice and discrimination against black Americans should 
be strongly pressed but in such a way that it leads to a desire 
for more extensive community of the faithful in justice and 
love. 

CONCLUSION 

In summary, therefore : 

(1) Religious groups should seek to become the focus of 
identity and community solidarity for newcomers in a 
neighborhood, as they so effectively have been for previous 
immigrant and ethnic groups. In doing so, they must rec- 
ognize the need to make common cause with the poor of 
these communities in their struggle to participate as equals 
in American society. This entails a greater reaching out 
of the church toward the community. 

(2) Religious groups should take advantage of the con- 
fidence they frequently enjoy among poor and affluent alike, 
and especially among ethnic and racial groups which have 
a deep sense of unity around a common religious identity, 
to build bridges of confidence and understanding between 
hostile groups. Religious groups should particularly work 
toward understanding and cooperation between formerly 
established residents and newcomers in a neighborhood 
by asserting the common values which should be the basis 
for unity. 

(3) In these efforts religious groups should always be 
sensitive to the fact that the very sense of identity of 
people around religious values can reinforce group isola- 
tion, and leave religion in a situation where it is the basis 
for division and hostility. 

(4) Religious groups must also be sensitive to the wide- 
spread alienation from national values and religious values 
which is prevalent, and recognize that this alienation is 
partially due to the identification of religion with inter- 
ests which are no longer seen as deeply human or even 



210 Report of the Task Force on Law and Law Enforcement 

deeply religious. If a genuine religious spirit can be made 
more evident in religious groups, in parishes and churches, 
they may serve once again as the basis for a renewal and 
a sense of identity around meaningful values and goals. 

(5) The dramatic and public manifestations of non- 
violence inspired by religious motivation evident in the 
Black protest movement and among Mexican-Americans 
and Puerto Ricans provide a suitable basis on which reli- 
gious groups should mount a much stronger and deter- 
mined effort to cultivate a spirit of nonviolence through- 
out the entire American community. 

(6) The increasingly cooperative and ecumenical efforts 
of religious groups, churches, and parishes in this Nation 
can be directed more vigorously toward: (a) identifying 
more clearly the central values of the Nation; (6) clarify- 
ing the manner in which these values should express them- 
selves in social institutions and individual behavior; and 
(c) working toward an increasing national consensus 
around these values. 

The effectiveness of religion as a peacemaker should not be 
overemphasized, however. It is not like a machine which works 
automatically, nor is it a blueprint for people to follow simply, 
step by step. 

Religion is a call to the spirit, often muffled by the din of 
men's preoccupation with the world. Sometimes religion is most 
effective when it appears to be most helpless. The cry of the 
prophet is often a lonely one which may provoke violence 
against the prophet himself. He may speak more eloquently 
in death than he ever did during his life. 

Nevertheless, the past gives promise that the Churches can be 
a genuine force for the containment of violence and for order 
with justice and dignity. 



CHAPTER 12 
THE REFORM OF THE UNIVERSITY* 



Individuals may form communities, Benjamin Disraeli once 
observed, but only institutions can make a nation. 

The observation is particularly relevant to this nation in these 
troubled times. Institutions are the inventions by which man has 
collectively solved his problems and civilized his world. When 
they become ineffective, a nation is in serious trouble. 

The malaise which presently afflicts the United States results 
in large measure from a kind of "institutional paralysis." Our 
political, economic, religious, social, and educational institutions 
are in disarray; they are not sufficiently responsive to the de- 
mands of the present or the needs of the people ; they seem un- 
willing or unable to reform. Americans, as a result, have begun to 
lose faith in their institutions and in the social system which they 
comprise. 

This is somewhat unusual. We Americans have always been 
supremely confident of our ability to solve problems, to accom- 
plish any goal. Now we are no longer so sure. 

The Republic is plagued with problems that defy solution. De- 
spite great national wealth, millions of Americans are poor. In a 
land dedicated to the idea of freedom and equality, many of our 
fellow citizens still struggle for basic human rights. Our cities 
are decaying and appear to be ungovernable. Our countryside is 
blighted and reveals a callous disregard for natural beauty and 
natural resources. Our air and water are polluted. A war in Asia 
has sapped our strength and divided our people; violence and 
mounting crime at home mock our laws and erode our unity. 
Age-old conflicts flare with renewed intensity between order 
and justice, between the individual and the state, between private 
rights and public welfare, between the older and younger genera- 
tions. 

The context of modern life is change bewildering, buffeting, 
incessant change. Problems multiply far faster than solutions. 
Events transpire so swiftly and so inexorably that they seem to 



* This chapter was prepared by Ronald A. Wolk, Vice President of 
Brown University. 

211 



212 Report of the Task Force on Law and Law Enforcement 

have a force and a direction unto themselves. Our institutions, 
like sluggish ships, creak and strain in these winds of change. 
And our people grow weary. 

Sociologist Wilbert E. Moore has written : 

Concerted action to meet crises, to extend power, or to 
resist tyranny is very old in human history. Concerted action 
to create crises, to institute change as a regular feature of 
social life, is rather new. In most societies through most of 
human history, the predominant effort has been directed 
toward holding things steady or restoring a steady state if 
it is disrupted by some natural or man-made crisis. The 
phenomenal thing about modern industrial states, and others 
attempting to follow the same path, is the great energy de- 
voted to deliberate disruption of existing conditions and the 
creation of new ones. 

In the face of this situation, many Americans despair and feel 
that they can do nothing to influence the decisions and develop- 
ments that shape their lives. Others, perhaps equally desperate, 
struggle to regain control of their destiny through a massive 
restructuring of society's institutions. 

It should not be surprising that the greatest effort to reform 
society and its institutions is being made by the young. They are 
by nature idealistic and impatient. 

Nor should it be surprising that the greatest effort to reform is 
being directed at or through our institutions of higher learning. 
The campus is the subculture of the young. The university is their 
institution as well as their doorway to and lever on the greater 
society. 

"It is in the universities that the soul of the people mirrors 
itself," Lord Haldane said half a century ago. Our colleges and 
universities in their present turmoil surely reflect to a significant 
degree the malaise of the larger society just as they have in 
other nations in other times. What happens on the campuses, 
therefore, will be very important not only for higher education, 
but for the nation. 

CAMPUS UNREST AND ITS CAUSES 

Americans have never been so aware of their colleges and uni- 
versities as they are today. Since World War II, higher education 
has made enormous progress and has accomplished marvelous 
things. But turmoil and violence have greater news value than 
teaching and research. 

The first dramatic assault on a university came in 1964, at the 
University of California, when Mario Savio, a student, did battle 
with Clark Kerr, the president. The "revolution" which began 
then continues today. Mr. Kerr eventually became the first cele- 



The Reform of the University 213 

brated victim of the new era of campus unrest. There is some 
irony in that, for he so aptly described the hazards of the new 
"multiversity" that he presided over. Describing the president as 
"Mediator," and thus seriously underestimating his role Mr. 
Kerr wrote in The Uses of the University: 

. . . peace and progress are more frequently enemies than 
friends ; and since, in the long run, progress is more impor- 
tant than peace to a university, the effective mediator must, 
at times, sacrifice peace to progress .... Power is not neces- 
sary to the task of mediation, though there must be a con- 
sciousness of power. The president must police its use by the 
constituent groups, so that none will have too much or too 
little or use it too unwisely. To make the multiversity work 
really effectively, the moderates need to be in control of each 
power center and there needs to be an attitude of tolerance 
between and among power centers with few territorial ambi- 
tions. When extremists get in control of the students, the 
faculty, or the trustees with class war concepts, then the 
"delicate balance of interests" become an actual war. 

The idiom of war used by Mr. Kerr has become increasingly 
more appropriate. After Berkeley, a number of campuses erupted 
into turbulence of varying degrees. Students became more mili- 
tant, and their tactics more disruptive. Recruiters for Dow 
Chemical and the military services were first picketed, then ob- 
structed, and finally driven from the campus. Protests outside of 
buildings escalated to lockouts, then sit-ins, then seizures. Here 
and there the turbulence became violent and the police were 
called in. Then in the spring of 1968, fierce and bloody riots broke 
out at Columbia University. 

The riots at Columbia in 1968 made the Berkeley revolt of 1964 
seem quite tame. Savio fired at the university and bagged a presi- 
dent; Mark Rudd not only brought down the president, but 
wounded the university as well. Since then, the pace has quick- 
ened. San Francisco State College set a new pattern of disruption 
and violence : the first prolonged student strike, bombings, sabo- 
tage, and a campus kept open only by daily patrols of police. 

Last spring, when it almost seemed that matters could hardly 
become worse, Harvard University cool, sophisticated Harvard 
which seemed always to do everything right became the scene 
of a bloody "bust." Some 400 club-swinging policemen emptied 
University Hall of several hundred student protesters in a matter 
of minutes. It was quick, efficient, and very violent. 

Almost before the television crews could find lodgings in Cam- 
bridge, a group of black students at Cornell seized a building and 
smuggled in arms and ammunition to defend themselves. The 
photographs showing them leaving the building, rifles in hand, 



214 Report of the Task Force on Law and Law Enforcement 

and bandoliers across their chests, shocked a nation that by now 
had thought itself unable to be shocked. 

A CBS television report later indicated that a substantial 
number of white students had armed themselves, thus prompting 
blacks to do likewise. 

The wake of this campus turbulence is littered with casualties : 
Presidents by the dozens have quit or been fired; faculty have 
resigned ; students have been expelled or have droppd out to make 
a profession of protest. Alumni and donors, on whom institutions 
depend for financial support, have reacted with anger. Legislators 
at the state and federal level have introduced scores of bills to 
curb the student demonstrations and punish the demonstrators. 

Said one professor : 

The problems are similar to a city struck by sudden and 
protracted disaster: confusion, disorganization, self-interest 
rampant, a general malaise in which the cardinal principle 
of conduct is "every man for himself." 

This account of campus unrest since 1964 is so brief and over- 
simplified that it is at best impressionistic. That is what it is 
meant to be. The purpose of this chapter is not to trace the 
evolution of campus protest and violence, but rather to offer some 
thoughts about the reasons for campus turmoil, various responses 
to it, and some of the possible consequences it may have for 
higher education as a whole. 

First, however, some distinctions must be made regarding stu- 
dents and the nature of much campus protest. 

To speak of "the students" as though they are a monolithic 
force rampaging on the Nation's campuses is, of course, inaccu- 
rate and misleading. More than seven million young people are 
enrolled in colleges and universities in the United States, and 
they are as varied in their social and cultural backgrounds, their 
attitudes, manners, and morals as the society at large. The great 
majority of these students are not radical, or militant, or even 
activist. Most of them, in fact, attend the 1,600-or-so institu- 
tions of higher learning in the country which have not been dis- 
rupted by mass protest or violence. They represent what has been 
called "the silent majority," and like most students of previous 
generations they are concerned with preparing for and ulti- 
mately suceeding in a career. These students are not significantly 
involved in politics whether on or off the campus, and their basic 
values are not substantially changed by the college experience. 

It is also misleading and inaccurate, however, to conclude from 
this that the turbulence on the campuses is being caused by a tiny 
minority of students and that order will be restored if this small, 
willful group is dealt with firmly. Although a majority of Amer- 
ica's students are not part of the protest that has wracked cam- 



The Reform of the University 215 

puses in recent years, a substantial minority is in general sym- 
pathy with it. A recent survey by Daniel Yankelovich, Inc., a 
major attitude-research firm, revealed that about 40 percent of 
America's college students (about 2.5 million) differ significantly 
from the majority. They tend to be somewhat disdainful of 
career preparation and financial success after college; they are 
likely to be majoring in the humanities and to be concerned with 
intellectual matters and social problems; they are interested in 
public issues and politics, and their attitudes are likely to be 
dissident. 

The Yankelovich survey showed, for example, that about two- 
thirds of this "involved minority" think it appropriate to engage 
in civil disobedience in support of a cause. Two-thirds approve 
disruptive tactics in resistance to the draft. Fewer than half of 
these students feel that it is worth going to war to protect our 
national interest, or contain communism, or protect allies, or 
maintain our position of power in the world. Only 20 percent feel 
it is worth fighting to protect the nation's honor, and only 14 
percent would fight to keep a commitment. Half of the "involved 
minority" indicated that they have less faith in democratic pro- 
cesses than their parents have, and about half feel that the 
United States is a sick society. 

Attitudes are one thing, however, and action is another. Al- 
though the "involved minority" may hold dissident views and 
generally sympathize with much of the campus protest, most of 
them have not been active in their dissent. Harris and Gallup 
polls indicate that only about 20 percent of the Nation's college 
students have participated in political or civil rights activities, 
and this includes traditional political activities like the 1968 cam- 
paigns of Senators McCarthy and Kennedy. An even smaller 
number have participated in campus protests. 

Within the "involved minority" are the radicals, the militants, 
the active sympathizers, and the potential sympathizers. 

The radical students those who have given up on society and 
its institutions and would use violence to destroy them are very 
few in number. Even on the larger and more active campuses like 
Berkeley, where radical students tend to congregate, they repre- 
sent a mere handful. Nonetheless, radical students exert an influ- 
ence out of proportion to their number, and they may express 
their extremism in acts of violence which trigger larger 
disruptions. 

The militant students essentially the New Left number 
fewer than 100,000, less than 2 percent of the total student popu- 
lation. They are now convinced that society and its institutions 
have become corrupted mainly by a military-industrial complex, 
but they are still largely committed to change rather than des- 
truction. Students for a Democratic Society (SDS) has been the 



216 Report of the Task Force on Law and Law Enforcement 

most widely publicized and the most influential organization of 
militant new left students. Formed in the early 1960's to develop 
a new movement to affect American politics, SDS claimed about 
7,000 dues-paying members last year, and a total of 35,000 mem- 
bers in its several hundred local chapters. Data collected by the 
Educational Testing Service reveals that in 1965 there were ''stu- 
dent left organizations" on 25 percent of college and university 
campuses; by 1968, the number had grown to 46 percent. Now, 
however, SDS and the new left, like the old left before it, is 
tearing itself apart in factional disputes. 

Among the militant students are the militant black students 
whose special interests and activities justify treating them as a 
separate category. Organized mainly into black student unions 
and Afro-American societies on scores of campuses, the black 
students have confronted administrators and faculty with several 
specific demands, and they have been militant in their objectives 
and their tactics. Distinctions must be made with regard to black 
students also, for not all of them are militants or even activists. 

Between 4 and 5 percent of the student population might be 
described as active sympathizers. Though they may not consider 
themselves members of the new left, they are concerned with 
reform. Their dissident views make them receptive to the argu- 
ments and demands of the militants. The active sympathizers are 
not committed to demonstration and disruption, and most of 
them would probably find violent tactics distasteful. But they 
respond to issues and could conceivably be "radicalized" in a 
particular situation. 

The remainder of the "involved minority" are potential sym- 
pathizers. They tend to identify more with their fellow students 
than with administrators or faculty. Though they may not devote 
much of their time or energy to reform efforts they are more 
likely to concur with these efforts than to oppose them. A given 
issue or a particular incident (like the appearance of police on 
the campus) might turn potential sympathizers into active sym- 
pathizers very quickly. Surveys show that nearly 20 percent of 
the "involved minority" feels a sense of "solidarity and identifi- 
cation" with the new left. 

In addition to differentiating among students it is important to 
recognize that a substantial amount of the protest against col- 
leges and universities particularly until recently was in 
reality protest against the larger society. In the early 1960's stu- 
dents used their colleges and universities as bases from which to 
launch attacks against a system which had for three centuries 
persecuted black Americans. In the mid-1960's, the Vietnam war 
became the target of student protest, along with war-related ac- 
tivities like military recruiting and defense research. In other 
words, the young began to question the legitimacy of the society, 



The Reform of the University 217 

and it was inevitable that they should also come to question the 
legitimacy of society's institutions. As the protest movement 
evolved, the student attacks came to be directed at the colleges 
and universities themselves, first as members or agents of the 
"evil establishment," then as "reactionary" institutions in their 
own right. 

Viewing universities as a surrogate of the society was not 
productive; they simply couldn't bear all the sins of society in 
scapegoat fashion. Focusing on the universities for their own 
sins, however, was another matter. There were enough things 
wrong on the campus to sustain a vigorous protest movement, 
and students soon learned that their confrontation tactics exert 
an effective influence for reform. 

THE NEED FOR REFORM 

The students were not the first to conclude that higher educa- 
tion needs reforming. The more perceptive of the faculty and 
administration knew that. But students, unlike their elders, were 
unwilling simply to point to problems and wait patiently for 
change: they were determined that the university should move 
promptly to mend its ways. They focused on three main areas : 

1. Undergraduate Teaching 

What Sidney Hook once described as "subtle discounting of 
the teaching process" had become so unsubtle that it was now 
obvious to everyone, most especially to the undergraduates. In 
universities many of the teachers don't teach undergraduates, 
they conduct research and work with graduate students. Those 
who do teach carry heavier teaching loads and are as likely as not 
to be graduate student instructors or junior faculty. Many are 
highly specialized professionals who are strongly oriented to 
their disciplines, and thus more inclined to teach their specialty 
than their students. 

William Arrowsmith, professor of classics at the University of 
Texas, spoke out sharply and eloquently in a popular magazine 
(an act that surely makes him an academic muckraker) : 

What matters, then, is the kind of context that we can 
create for teaching and the largeness of the demands made 
upon the teacher. Certainly he will have no function or honor 
worthy of the name until we are prepared to make the pur- 
pose of education what it always was the molding of men 
rather than the production of knowledge. It is my hope that 
education in this sense will not be driven from the university 
by the knowledge technicians. We will not transform the 
university milieu or create teachers by the meretricious 



218 Report of the Task Force on Law and Law Enforcement 

device of offering prizes or bribes or teaching sabbaticals or 
building a favorable "image." At present the universities are 
as uncongenial to teaching as the Mojave Desert to a clutch 
of Druid priests. If you want to restore a Druid priesthood, 
you cannot do it by offering prizes for Druid-of-the-year. If 
you want Druids, you must grow forests. There is no other 
way of setting about it. 

Former President of the University of Iowa, Howard R. Bowen, 
said recently: 

There is one aspect of academic life that has not changed 
very much. That is the liberal education of undergraduates. 
While much lip services is given to innovation, new tech- 
nology, and the like, most teaching still centers around the 
professor, the textbook, didactic lectures, close supervision 
of the student, credits and grades. Whatever gain has been 
made in effectiveness of instruction has occurred through 
improved motivation of students, better secondary prepara- 
tion, and improved qualifications of faculty not through 
improvement in the mode of instruction in colleges and 
universities. 

It is a safe bet that the majority of students who earn the 
baccalaureate degree manage to leave the university without 
having had "the light turned on." The promises in the admis- 
sions brochures notwithstanding, the "whole man" is often not 
the concern of the university. A number of studies have failed to 
find that the college has any significant effect in liberalizing or 
liberating the undergraduate or in altering his structure of 
values. The emphasis in most curricula has been professional and 
preprof essional. Howard Bowen says : 

The curriculum has little impact on the life, values, goals, 
feelings, and deeds of the student. It fails to come to grips 
with the universal problems of human life and with the 
great issues of our times which do not fall neatly into the 
disciplines. It often seems to the student sterile and irrele- 
vant, and fails to motivate him or even repels him. . . . Also, 
the curriculum, built up of randomly selected smatterings, 
lacks integration. 

2. Student Life 

Until very recently, the student drew little water in the 
academic sea. Leslie Stephen expressed a widespread attitude 
when he said : "What a blessed place this would be if there were 
no undergraduates! .... No waste of good brains in cramming 
bad ones." 



The Reform of the University 219 

A university president, meeting with the Commission to dis- 
cuss campus disorders, unwittingly declared : "I keep telling my 
faculty that these days (added) we must listen to the students." 

For many years, the concept of in loco parentis prevailed, and 
the student faced on the campus the close supervision he would 
face at home. Presently, the young are kicking the final breath of 
life from this notion. They are demanding the right to be treated 
as adults. The chafing rules smoking, drinking, sex, parietals, 
dormitory hours, etc. are crumbling at a rapid pace. Last year, 
campus protests against dormitory regulations were second in 
number only to the protests against the Vietnam War. 

Also, until recently, students had little or no say in the man- 
agement of extracurricular affairs or in matters of student disci- 
pline. Certainly they had no voice in the curriculum or the formu- 
lation of university policy generally. 

The massive growth of higher education has also led to condi- 
tions which students find depressing. As campuses have tripled 
and quadrupled in size some of them exceeding enrollments of 
30,000 the student has felt himself relegated to the status of 
computer card. Faced with a problem, he is shuffled from one 
administrator to another in the growing bureaucracies made ne- 
cessary by expansion. 

Clark Kerr observed : 

The multiversity is a confusing place for the student. He 
has problems of establishing his identity and sense of secu- 
rity within it. But it offers him a vast range of choices, 
enough literally to stagger the mind. In this range of choices 
he encounters the opportunities and the dilemmas of 
freedom. The casualty rate is high. The walking wounded 
are many. Lemfreiheit the freedom of the student to pick 
and choose, to stay or to move on is triumphant. 

The pressure of numbers is exacerbated by the pressure to 
achieve. Joseph Katz and Nevitt Sanford wrote in the "Causes of 
the Student Revolution" : 

As is well known, the conditions of the post-Sputnick era 
have led to a tightening of standards of academic perform- 
ance and an increased demand upon quantity of work by 
students. The resulting pressure is felt by good students as 
well as poor ones. In the more selective schools, all the stu- 
dents are able and well prepared, yet they still feel an enor- 
mous amount of pressure, because of the grading curve and 
the inclination of the faculty to assign more reading than 
anyone can do. People usually ascribe these pressures to the 
intellectual competition of the Cold War, but another factor 
is the higher birth rate, which has considerably increased 
the number of students applying to colleges and has thus 



220 Report of the Task Force on Law and Law Enforcement 

provided both an economic and a moral base for increased 
selectivity. 

Secondary school teachers report that junior high school stu- 
dents worry about qualifying for admission to a good college or 
university. 

3. The University's Role in Society 

For the most part, colleges and universities have gone about 
their business asking nobody's "by your leave." Faculties re- 
served the right (which they frequently did not exercise) to set 
academic policy ; everything else was generally left to the admin- 
istration and the trustees. If higher institutions deplored the 
plight of the Negro in America, they did so without stretching 
themselves to do anything about it. Colleges and universities 
came nowhere near reflecting in their student bodies, faculties, or 
administrations the proportion of blacks in the society at large. 
If a university needed room to grow, it took steps to acquire land 
with little more than passing thought to the disruptions that 
might ensue in the neighboring community. Many universities 
cheerfully accepted funds for programs of special interest to one 
or another special interest group be it business, a foundation, or 
the Department of Defense. They aided in the recruitment of 
military officers with Reserve Officer Training Programs and 
complied with a law that specified credit for substandard courses 
and professorial status for unqualified military officers. Some in- 
stitutions found nothing contrary to the spirit of free and open 
inquiry in conducting classified research on the campus. 

For today's students, such a posture deeply implicates the uni- 
versity in what they view to be the worst shortcomings of society. 
The Report of the Select Committee on Education at Berkeley 
eloquently describes how the militant student views society and 
suggests why students have become disenchanted with the insti- 
tution they know best and believe to be a molder of society. 

As these students see it, while the dominant group claims 
to champion freedom, religion, patriotism, and morality, it pro- 
duces and condones slums, racial segregation, migrant farm la- 
borers, false advertising, American economic imperialism, and 
the bomb. In private life, moreover, the students find as much 
immorality and injustice as in public life. They commonly explain 
it as the product of an all-pervasive hypocrisy. 

These examples, though not all-inclusive, at least indicate the 
need for reform. They should help to explain the frustration of 
students and their new militancy on the campus. But if the stu- 
dents have a right to press for reform and they obviously do 
they also have an obligation to try to understand the university, 
to learn how it has reached its present state, and to ponder the 



The Reform of the University 221 

methods and goals of reform and their impact on the university. 

Someone once said that no one should meddle with a university 
who does not understand it and love it. The comment was prob- 
ably prompted by a realization that the university is a rather 
fragile institution, despite the fact that it has endured for a 
thousand years and has survived formidable threats to its integ- 
rity and freedom. The university is fragile because it is no more 
than people of good will committed to some very lofty principles : 
freedom, tolerance, mutual understanding, open communication, 
truth, and honesty. These are surely elusive principles difficult 
to attain, easy to lose. They are, however, the only things that 
distinguish a university from any other cluster of buildings in- 
habited by humans with all their vested interests and venal short- 
comings. 

By its own actions, the university has compromised some of 
these principles. Great social forces working on the university 
have also jeopardized them. Now, in a righteous frenzy to reform 
the university, its active critics imperil these principles. 
Freedom, especially, is in danger. 

THE UNIVERSITY TRADITION IN AMERICA 

Freedom what Harvard's Nathan Pusey has called "the 
freedom of the mind on which all other freedoms depend" is 
both the gift to and the gift from the University. Only if they are 
independent and autonomous can universities perform the unique 
tasks which tradition and society demand of them. And only if 
these tasks are performed can society itself hope to remain free. 

Universities perform many functions some by choice, some 
by demand but their central and unique missions are to seek 
and disseminate truth, to transmit the intellectual and cultural 
heritage from generation to generation, and to evaluate society 
and, when necessary, to serve as its critic. 

"To fulfill these functions in the service of the community," 
writes Cambridge Univresity's Sir Eric Ashby, universities 
"need the freedom to choose their own mode of action as well as 
continuous and critical awareness of the real needs of the com- 
munities they serve which may not always be those that the 
community urges upon them so clamorously at any given moment 
of time." 

These are dangerous duties, and, because they perform them, 
universities occupy a privileged position. Society grants them the 
material support they need, but permits them the independence 
and autonomy to govern themselves. Universities are fed partly 
so that they can bite the hand that feeds them. No other institu- 
tion is so favored : but then no other institution fulfills this role. 

The tradition on which this unique freedom is based began 



222 Report of the Task Force on Law and Law Enforcement 

with the medieval university. It held that universities must be 
free to determine their own goals and to select the means to 
accomplish them and to do both without interference from out- 
side authority. 

The tradition has survived because it is in society's own best 
interest, because scientific and social progress depend upon a 
search for truth unimpaired by arbitrary limitations, because an 
open society requires liberally educated and thinking citizens, 
and because "without fearless criticism, the nation would lose its 
power of self -renewal." 

Whenever the freedom of universities is in jeopardy so is the 
freedom of the nation, for a society can only be as free as its 
universities. Or as Samuel Gould, president of the State Uni- 
versity of New York, told his State legislature: "A society that 
can no longer trust its universities can no longer trust itself." 

It is this freedom, this unique character of the institution that 
is at stake in the present struggle for control of the university. 
Unfortunately, many of those who would reform universities nei- 
ther understand them nor love them. Their intent may be noble, 
but their actions often are not. Their zeal may not be question- 
able, but their goals often are. 

Jacques Barzun, former provost of Columbia, said in his book, 
The American University: 

The fact remains that the university as an institution has 
become the object of an endless guerrilla [war], part orga- 
nized, part fortuitous. It is perhaps time that this institu- 
tion, which is still loved and respected, even by its impatient 
clients should be better understood. The subject is complex 
and variable, but not beyond comprehension. 

The present crisis in the American university is a crisis of 
purpose, organization, and governance. The university is 
confused about its mission, inadequately structured to do 
what is demanded of it, and, as the present campus turmoil 
indicates, virtually unable to govern itself. 

It is true, as critics charge, that universities are in trouble 
today because they have not changed to keep up with the condi- 
tions of a modern post-industrial state. But is is equally true 
though the critics seldom realize it that universities face this 
awesome crisis just because they have changed profoundly over 
the past several decades. This is not doubletalk. It is an acknowl- 
edgment that powerful external forces have greatly changed the 
American university and made it what it is today. 

The American university was born nearly a hundred years ago 
as a new species of institution, and it contained the seeds of the 
crisis that now plagues it. It was conceived in the period of the 
land-grant movement during and after the Civil War, came of 



The Reform of the University 223 

age during World War II along with the scientific revolution, and 
matured into a powerful and affluent institution worth fighting 
over during the past decade. 

The colonists brought with them the English undergraduate 
college with its emphasis on religion and its mission of teaching 
the classics to the upper classes. Onto this stalk, late in the 19th 
century with the founding of Johns Hopkins as the "first true 
university," was grafted the German university concept of aus- 
tere devotion to scientific research and scholarship and graduate 
education. 

This in itself was an unlikely blend, but the new hybrid was 
then nourished in the soil of American utilitarianism and egalita- 
rianism, from which came the land-grant movement with its ded- 
ication to mass higher education and service to society. 

The land-grant movement introduced three revolutionary ideas 
into American higher education and launched three major trends 
which, in the past century, have fundamentally shaped higher 
education in this country. First, the land-grant movement created 
the precedent of direct federal financial support to higher educa- 
tion. Second, the movement established the concept of enlisting 
the resources of colleges and universities to meet pressing na- 
tional needs. And third, the land-grant movement began the 
trend toward mass higher education. 

The land-grant movement was marked by three major acts: 
(1) the Morrill Act of 1862 which awarded federal lands to the 
states to aid higher education and to endow state colleges to 
promote the "liberal and practical education of the industrial 
classes in the several pursuits and professions of life"; (2) the 
Hatch Act of 1887 which provided, for the first time, federal 
funds to states for "practical research" ; and (3) the Second Mor- 
rill Act of 1890 which provided direct federal money grants to 
land-grant colleges for instruction in the specific subjects of agri- 
culture, engineering, and the natural sciences. ( Significantly, the 
second Morrill Act provided that Negroes would benefit from its 
provision, although it allowed for "separate but equal" treat- 
ment. ) 

These acts were enormously significant. They were both prag- 
matic and democratic. In the latter half of the 19th century, the 
United States desperately needed the skilled manpower, the 
knowledge, and the technology to advance industrial and agricul- 
tural expansion. The land grant acts met this need ; they establ- 
ished "democracy's colleges" to give practical training to the sons 
and daughters of the working classes and to improve research 
and instruction in practical subjects. The land-grant movement 
laid the basis for the greatest system of public higher education 
in history a system that has flourished with a growing commit- 



224 Report of the Task Force on Law and Law Enforcement 

ment to a firm national policy that every American child is enti- 
tled to all of the education he is capable of. 

The hybrid university of the late nineteenth century fared well 
in those less sophisticated and less frenetic times. In fact, if ever 
the term "community of scholars" had meaning, it was then. 
Untroubled as yet by the pressures of mammoth enrollments and 
the scientific revolution, universities conducted their affairs in 
relative harmony. 

World War II changed all that. The war brought an end to the 
innocence of the university and ushered in a new era which has 
seen more changes in higher education than in all of the previous 
years combined. 

When the war broke out, the government's own research labo- 
ratories proved inadequate to provide the research and tech- 
nology necessary for a full-scale war effort. Washington, there- 
fore, turned to the universities, and they responded with an en- 
thusiasm to match that of the milions of men who were rushing 
to the colors. If this was the beginning of today's infamous "mili- 
tary-industrial complex," it was at least conceived with the best 
of intentions : the survival of the free world. 

Before World War II, scientific research was somewhat limited 
in the universities. Few dollars were spent on it, and the giants 
of the scientific community fashioned their equipment from bits 
of metal and glass, left over machine parts, and ample measures 
of genius. Some $15 million in federal funds went to higher edu- 
cation for research in 1940 most of it to land-grant institutions 
for agricultural research. In 1944, a single agency (the Office of 
Scientific Research and Development) spent $90 milion on con- 
tract research with universities. 

The research effort in universities did not end with the War. 
Millions of veterans returned from the battlefields and flocked to 
the campuses. The tensions of the cold war prompted a massive 
and continued defense effort. Federal dollars flowed in greater 
amounts, mostly to the top 50 universities. The trends toward 
scientific research, academic specialization, and scholarly publica- 
tion that began to be visible in the 1930's accelerated in the 
1940's and have continued to grow in scope and intensity through 
the past two decades. 

The decade of the 1960's has represented an unprecedented 
period of affluence and influence for the American university. 
The land-grant movement planted the seeds of mass education, 
research, and service to society. These seminal ideas blossomed 
during and just after World War II. The fruits have ripened 
during the past 10 years. Some statistics suggest the scope of the 
changes that have occurred in just 30 years. 

(1) In 1949, there were 1,700 colleges and universities in 



The Reform of the University 225 

the United States and they enrolled 1.5 million students. In 
1969, there are more than 2,300 higher institutions with 
more than 7 million students. 

(2) The federal government spent about $15 million on 
the campuses in 1940, nearly all of it for agricultural re- 
search. In 1968, the federal government's support to higher 
education approached $5 billion, of which about $1.4 billion 
was expended for on-campus research. As recently as 1958, 
the great bulk of federal support to higher education went 
for research; now some 70 percent of it goes toward such 
things as new buildings, student aid, and general grants to 
institutions. 

(3) The states spent less than $154 million on higher edu- 
cation in 1940 ; today they spend about $5 billion on the 
campuses. 

(4) In 1940, higher education's property and endowment 
was valued at $4.5 billion ; last year the amount was nearly 
$30 billion. 

No one who knew the universities of 1940 can say they have 
not changed. They have changed greatly and grown enormously, 
and tremendous strains have resulted. The pace has been incre- 
dibly swift and it proceeds ever faster. The hybrid university of 
the late nineteenth century is now full grown and so are the 
problems that were built in at its birth. Looking back, one can 
easily see that the potential for conflict was built in. The Amer- 
ican university embodied three great missions teaching, re- 
search, and service. Each now pulls it in a different direction. In 
fact, in the context of universal higher education and American 
egalitarianism these three missions may well be inherently in- 
compatible in a single institution. 

AMERICAN HIGHER EDUCATION 

It is also necessary, if the present crisis is to be understood, 
to realize the meaninglessness of the term "American higher edu- 
cation." This suggests a system, an orderly and rational typology 
of institutions which does not, in fact, exist. Most people use the 
terms "college" and "university" generically to mean an institu- 
tion of higher learning. This is understandable, but it leads to 
serious misunderstandings. The 2,300-plus institutions of higher 
learning in the United States are a diverse collection of institu- 
tions private and public, secular and religious, large and small, 
old and new, urban and rural. There are senior "universities" 
which spend millions of dollars on research, train graduate stu- 
dents and operate institutes and professional schools. There are 
"universities" which do none of these things. There are 4-year 



226 Report of the Task Force on Law and Law Enforcement 

colleges which concentrate on undergraduate education (some 
call themselves universities) and there are four-year colleges 
which offer advanced degrees and have professional schools (and 
do not call themselves universities). There are an increasing 
number of " junior colleges" which are 2-year institutions and 
which offer vocational training or academic preparatory work. 
There are technical instituties, arts schools, music schools, mili- 
tary schools, etc. and they are all institutions of higher 
learning. 

This confusion in terminology and definition is symptomatic 
of the more harmful confusion of purpose. By lumping all of 
these institutions together, we fail to differentiate on such impor- 
tant questions as what they should do and how they should 
do it. Higher education in the United States would be in a much 
more felicitious condition if society and higher education itself 
had long ago realized and acknowledged that there are many 
different types of institutions and that their functions, struc- 
tures, and methods of governance should reflect these differences. 
What is "right" for Harvard is not likely to be "right" for 
Catonsville Community College and vice versa, though sometimes 
it seems that neither Harvard nor Catonsville (nor society, for 
that matter) knows it. 

In the best of all worlds, perhaps, a system of higher education 
would lead to some logical division of labor. The universities 
some 150 graduate and research institutions would truly be in- 
tellectual communities devoted to scholarly inquiry and training 
at the highest levels. The colleges both public and private 
would devote themselves to undergraduate teaching primarily. 
And the junior colleges would offer training programs suited 
primarily to the needs of the communities in which they exist. 

Each type of institution would serve society in ways most com- 
patible with this clearly perceived primary mission and with its 
resources. Each would operate at its optimum size and efficiency. 
Faculty and students would choose the college or university best 
suited to their needs and abilities. Each institution would receive 
from a variety of sources the financial support required to fulfill 
its stated goals, and society would wisely value and reward each 
type of institution for its own distinctive contribution. 

This is not the best of all worlds. Universities are expected to 
teach undergraduates and graduates in large numbers, to conduct 
research, and to provide unlimited services to society and to do 
each exceedingly well. Society does not value each function 
equally, but prizes research and service above teaching, and 
spends its money accordingly. Most students and faculty follow 
the money and the prestige it buys, regardless of their needs and 
abilities. As a consequence, some universities are monstrously 



The Reform of the University 227 

large and cannot build fast enough to house their students or 
their programs. Some colleges are small and have great difficulty 
finding money, faculty, and students. In the large universities, 
students complain about being computer cards, about bureauc- 
racy, about poor undergraduate teaching. In the small colleges, 
faculty complain about lack of money, research, and prestige. 
Junior colleges want to be four-year colleges, which in turn want 
to be universities. All want more support, better faculty, brighter 
students, and the coin of the academic realm prestige. 
Nobody, it seems, is happy in higher education any more. 

Because the universities set the pattern for all of American 
higher education, what happens to them is extremely relevant to 
all institutions. If academic freedom and institutional autonomy 
are to be preserved or lost, it will be in the university that the die 
is cast. The crisis in function, structure, and governance in the 
university wilts the ivy across the whole spectrum of higher in- 
stitutions. It is in the universities that reform or revolution must 
begin. 

Consider some of the developments which have led to the 
crisis : 

The demand for knowledge and technology has put a premium 
on research and has created a single track system for individual 
rewards. To a young academician, research and publication are 
the only sure path to promotion and scholarly prestige. 

A graduate student in a Southern state university surely spoke 
for many of his colleagues when he said : 

I don't really care much for research; I'd rather teach. 
But that would immediately put a lid on my career and doom 
me to second class citizenship in the academic world. So I'll 
play the game; dig deeper and deeper into my speciality, 
scratch for government grants, and publish as much as pos- 
sible. 

Research has also fostered a parallel single track for institu- 
tional advancement. Research attracts money and the best 
faculty, and a college that wants its share of both is under con- 
siderable pressure to develop graduate education and research 
programs. This was one of the problems that led to the faculty 
disaffection at San Francisco State College. Faculty there re- 
sented the fact that Berkeley across the Bay had cornered the 
market on research and the money and prestige that follows it. 
The same situation exists in many state systems, where public 
colleges are pressing for the authority to offer the Ph.D. and thus 
to become competitive with their sister universities in the search 
for faculty, students, and federal funds. Even small private 
liberal arts colleges are flirting with the notion of adding gradu- 
ate programs for the same reason. 



228 Report of the Task Force on Law and Law Enforcement 

The trend makes the lip service to the value of diversity in 
higher education ring ever more hollow. If the colleges feel com- 
pelled to emulate the senior universities, they will not only lose 
their own distinctions, but they will simply add to the number of 
mediocre universities. 

Research and the scientific revolution (of which research is 
both cause and effect) have led to the increased specialization 
and professionalization which have caused painful problems 
for both faculty and students. Faced with a curriculum con- 
stantly expanding to embrace ever more academic specialties, 
the student despairs of what to learn: and the faculty of what 
to teach. While the subject matter fragments and fragments 
again, the faculty struggles vainly to bridge the gaps of com- 
munication and intellect by building interdisciplinary bridges. 

Editor, writer, and professor Irving Kristol has written: 

Only on a few small campuses does "the professor" still 
survive. The "professionalization of American life" has radi- 
cally emptied that category. A professor of sociology is 
now, by profession, a sociologist. He is not a member of 
any particular campus community, but of a nationwide 
nay, international corporate body of learned men. He is 
not even likely to reside on any one campus long enough 
to be a familiar figure there; and, while in residence, he is 
taken to be and regards himself as a representative of 
his discipline within the academic congregation. His stand- 
ing and his prestige derive exclusively from his reputa- 
tion among the 11,000 members of the American Sociologi- 
cal Association. The fact that he happens to teach is inci- 
dental. Unfortunately, however, the overwhelming major- 
ity of the members of these academic professions are 
fated to spend their lives doing what is incidental merely 
teaching. This fate becomes, for most of them, a confes- 
sion of professional failure. 

The growing emphasis on service to society has many of 
the same consequences as the emphasis on research. Service, 
like research attracts money most of it from the federal gov- 
ernment, but significant amounts from business, foundations, 
and state governments. 

As far as the student is concerned, service like research 
takes the professor from the classroom. And though the profes- 
sor may earn extra income or gain in prestige, service repre- 
sents for him another major commitment of his time. A promi- 
nent professor of biology says: "Considering my research, my 
teaching, my commitments to university committees and admin- 
istration, my membership on government panels, and my various 
consulting jobs, I have committed 150 percent of my time." 



The Reform of the University 229 

The university is expected to help solve society's many prob- 
lems from rescuing ghetto children to purifying the air, 
from advising government officials to developing new weapons 

systems. 

The University's response during the past few decades to 
society's needs for science and technology has been nothing 
short of miraculous. Today, however, there is a growing demand 
for answers to social and political problems. Society is con- 
cerned about law and order, urban blight, overpopulation, re- 
gional government, racial discrimination, poverty, education, 
and a myriad of other "nonscientific" problems. Having wit- 
nessed the miracles in the march of science, Americans now 
look for miracles in the social and behavioral sciences to help 
solve problems which in many cases have been caused by sci- 
entific developments. Neither the institutions nor the scholars 
are equipped to provide these answers. Their response, none- 
theless, is to call for more research (almost a conditioned 
response now) in the social sciences, to think in terms of insti- 
tutes, centers, even the creation of a National Social Sciences 
Foundation parallel to the National Science Foundation. 

Useful as such increased emphasis on social science research 
may ultimately be, it is a somewhat sterile answer to society's 
desperate need for solutions to staggering social problems. A 
more effective response the one which activist students seem 
instinctively to feel and express in their demands for curricular 
and academic reform is to reemphasize teaching. The great and 
unique contribution higher education could make to the social 
revolution which confronts us in the second half of the twen- 
tieth century is to produce a new breed of American young 
men and women who are ' 'turned on," who will reassert a 
dying concept of individual worth, who are committed to clos- 
ing the gap between the promise and performance of the Ameri- 
can democracy. Research on the phenomenon of racism will not 
accomplish as much as enlightened curricula and teaching de- 
signed to liberate men from their prejudice and ignorance. 

The debate over higher education's obligations to perform 
services for society has been raging for many years, and it 
will rage for many more. Some urge the academy to resist the 
pressure for more and varied services, arguing that universi- 
ties have become "supermarkets" or "service stations." Others 
strongly disagree and argue that colleges and universities ful- 
fill their noblest goal when they serve society even to the 
point of attending to the moral and spiritual health of society. 
Students take both sides of the debate condemning institu- 
tions on the one hand for serving society by conducting mili- 



230 Report of the Task Force on Law and Law Enforcement 

tary research, and condemning them on the other hand for not 
serving society by failing to lead the battle for civil rights. 

This raises the difficult issue of when a college or univer- 
sity should take a stand as an institution on political, moral, 
or social issues. Much of the disenchantment of today's youth 
seems to turn on this point. They cannot reconcile the existence 
of an affluent and aloof institution in the midst of evil and 
injustice. They call upon their universities to do battle. 

This is a hazardous course the students urge. A university's 
function is to universalize. All action is highly specific, and 
when an institution acts in moral or political issues, it jeopar- 
dizes its basic mission of providing an atmosphere for the 
objective and dispassionate search for truth. Sociologist Nathan 
Glazer puts it this way : 

There may be times when a university should hurl all of 
its resources into the battle against some great evil-but 
there always have been and always will be grave problems, 
and there will always be those who would propel the uni- 
versity into conflict. 

Some issues impinge upon the functions of the university and 
demand that the university take a stand. Assaults on academic 
freedom, compulsory loyalty oaths, legislative interference in 
campus governance are such issues. But to extend this involve- 
ment as some students and faculty demand into contemporary 
political and social issues would seriously impair the /univer- 
sity's obligation to transcend the times through which it passes 
and its freedom to reflect without bearing the responsibility to 
reform. Moreover, institutional neutrality does not prevent indi- 
viduals within the university community from taking stands 
on moral and political issues indeed, institutional neutrality 
does not prevent individuals within the university community 
from taking stands on moral and political issues indeed, insti- 
tutional neutrality makes such individual action possible with- 
out fear of retribution from society. 

The dilemma for higher education is a painful one, dependent 
as it is upon society for support. The tough questions remain 
unanswered : Which services are legitimately the business of the 
university, and which would be better performed by some other 
institution? How can the university remain sufficiently de- 
tached from the problems and politics of contemporary society 
to preserve their objectivity? How can the university remain 
detached without losing touch with the needs of society? 

Society's needs are so urgent that it may not wait for higher 
education to answer these questions. It may decide. 

Sir Eric Ashby notes : 



The Reform of the University 231 

. . . Forces from outside the university which formerly 
had only a marginal effect upon its evolution are, in the 
next generation, likely to exert a powerful influence on 
its evolution. Governments which heretofore had been con- 
tent to abide by a convention to leave the universities alone 
are now tempted to exert more and more dirigism upon 
them. Querulous protestation about this would be useless. 
Universities are enormously expensive to run. None of them 
can hope to survive without patrons. Between universities 
and their patrons there have always been buffers of con- 
vention. Their patron is now the man in the street; uni- 
versities must negotiate with him and establish new con- 
ventions which safeguard their heredity. 



UNIVERSITY GOVERNANCE 

This confusion of purpose, then, has led to many of the 
most serious problems on the campus. They and the present 
disarray in higher education have raised questions about the 
ability of the university to govern itself. 

The power to govern in higher education has been tradition- 
ally shared by three groups: Trustees, administrators (mainly 
presidents), and faculty. Alumni, donors, students, and others 
have sometimes exerted an influence, but they rarely shared in 
governance. 

The trustees, in most cases, are granted by law full authority 
over the institution. But custom is stronger than law in this 
area, and the trustees delegate most of their power most of the 
time to the president. 

In theory, the president's powers are wide ranging; in fact, 
he relies more on persuasion than power to accomplish any- 
thing. If he is to lead at all, it must be by consensus. 

Tradition gives to the university faculty the power to deter- 
mine the academic and intellectual style and substance of the 
institution. Their actual power, says Ford Foundation President 
McGeorge Bundy, is far greater: "It is the faculty which is 
the necessary center of gravity of the policies of the univer- 
sity, for teaching, for learning, for internal discipline, for the 
educational quality and the character of the institution as a 
whole." But Mr. Bundy goes on to argue that the faculty has 
usually used its power in a negative way, and, in its preoccu- 
pation with personal professional matters, has left the task of 
governance to others. (In many instances, the faculty has not 
acted because it has not really perceived its potential power 



232 Report of the Task Force on Law and Law Enforcement 

or its rightful responsibilities. In part, this is a legacy of an 
era of strong authoritarian presidents.) 

The net effect of this has been a power vacuum one which 
activist students have begun to fill with astonishing political 
sophistication. 

It must be kept in mind, as one regards with contempt this 
management consultant's nightmare, that we have deliberately 
built over the past century an institution of shared power. 
When one or another group has become so powerful as to upset 
this delicate balance, the results, as revealed by history, have 
been sad for the university. Such a scheme of shared power 
seems to be in keeping with the university's style of operating, 
with its dedication to thorough discussion and deliberation of 
every issue before taking a decision. The difficulty today is 
that the issues proliferate and the demand for immediate action 
is compelling. Universities are being pressured into making 
decisions which they are incapable of making (without creat- 
ing ill-will and dissention) in a matter of hours or days. 

The result of this awkward situation is either a kind of insti- 
tutional paralysis which is likely to lead to a student revolt 
or arbitrary action by one group on the campus which is likely 
to lead to the kind of campus war which Clark Kerr described 
and fell victim to. 

Once again, the situation tends to make everyone unhappy. 
The trustees feel their legal authority is being eroded and 
their ability to act constrained. The President is caught between 
opposing forces, none of whom he is likely to please. The faculty, 
with other fish to fry, resents the endless meetings and diver- 
sions. And the students think that all the others are really only 
delaying and pettifogging in an effort to avoid doing anything 
meaningful. Meanwhile, legislators, alumni, parents and others 
on the outside looking in grow increasingly certain that no- 
body is in charge and that everybody is irresponsible. 

If the university indeed appears to be irresponsible, if so- 
ciety does lose confidence in the university's ability to determine 
its own goals and manage its own affairs, then the danger to 
freedom is indeed great, for the ultimate fate of the university 
rests with society. 

"The abstention of government from major intervention in 
the affairs of the academy," writes a political scientist, "is not 
the result of a recognition of an absolute right of the academ- 
ies to do with their hallowed halls anything whatsoever, no 
matter what the subsequent impact on society may be. Rather 
it is conditioned upon academics meeting their obligations and 
responsibilities both as members of a self-regulating profes- 



The Reform of the University 233 

sion and as citizens of a free society. And if this is not done 
even the most liberal minded of governments might well be 
forced into a position of exercising its residual power of regu- 
lation in the interest of order." 

What most people especially students fail to see is that 
governance is not the university's strong suit. Unlike the state, 
the academy's primary function is not to govern or rule. By 
forcing the university to emphasize governance, militant stu- 
dents and faculty threaten to destroy the essential nature of 
the institution which has made it worth trying to control. 

Robert Brustein makes another important point. The young, 
he says : 

Are creating conditions in which it is becoming virtually 
impossible to do intellecutal work. In turning their political 
wrath from the social world, which is in serious need of 
reform ... to the academic world, which still has consid- 
erable value as a learning institution, they have deter- 
mined, on the one hand, that society will remain as venal, 
as corrupt, as retrogressive as ever, and, on the other 
hand, that the university will no longer be able to proceed 
with the work of free inquiry for which it was founded. 
As an added irony, students, despite their professed dis- 
taste for bureaucratic administration of the university, are 
now helping to construct through the insane proliferation 
of student-faculty committees a far vaster network of bu- 
reaucracy than ever before existed. This, added to their con- 
tinued meetings, confrontations, and demonstrations not 
to mention occupations and sit-ins is leaving precious lit- 
tle time or energy either for their intellectual development 
or for that of the faculty. 

Nonetheless, the university must fulfill what has been called 
its "order-teaching and order-maintenance" function. Unless 
the university community upholds a code of behavior which 
protects the rights of all to think, study, and speak, it will 
cease to exist as a university. Violence and disruption are sim- 
ply incompatible with the concept of rational discourse which 
must characterize the academy. Moreover, one must wonder 
with some apprehension what the effect will be on students 
who spend their college years in an atompshere of confronta- 
tion, disorder, and disruption. Students learn dangerous lessons 
when they learn that change can be accomplished by threat 
and violence, that there are no penalties for the violation of 
communities rules, that the right of others can be disregarded 
in the name of a cause. 



234 Report of the Task Force on Law and Law Enforcement 

CONCLUSION 

The university, then, has changed too fast but not fast 
enough. It has undergone revolution but not reform. It is in 
danger of losing its traditions of the past and of failing to 
keep pace with the future. It is a center of power in the post- 
industrial society, but seems powerless in its present crisis. 

Sir Eric Ashby says : 

Universities . . . are mechanisms for the inheritance of 
culture. Like other genetic systems they have great inertia. 
They are living through one of the classical dilemmas in 
evolution. They must adapt themselves to the consequences 
of their success or they will be discarded by society; they 
must do so without shattering their own integrity or they 
will fail in their duty to society. 

It is an awesome challenge, a hazardous blindfolded walk on 
the high wire, made infinitely more difficult and dangerous by 
those who push and pull it and hasten it onward. 

Sir Eric has a somber warning for the impatient reformers : 

. . . Academic evolution like organic evolution is ac- 
complished in small continuous changes. Major mutations 
are generally lethal. And changes must be based on what 
is already inherited. 



A PORTFOLIO OF 

LITHOGRAPHS ON 

CRIME AND 

VIOLENCE 



235 



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JO-' MAN IN/ J 



Book 




A PORTFOLIO OF LITHOGRAPHS ON 
CRIME AND VIOLENCE 

Jose Luis Cuevas 



This portfolio of lithographs by Cuevas depicting crime was made 
available to the Task Force through the courtesy of Touchstone Publishers, 
Ltd., 134 East 70th Street, New York, N.Y. 

Cuevas' works are in the permanent collections of leading museums in 
the United States, France, Peru, Venezuela, and Colombia. He has illus- 
trated a number of books, notably "The Works of Kafka and Cuevas" 
(1959) and his autobiographical "Recollections of Childhood" (1962). A 
portfolio of 12 lithographs, "Charenton," was published by the Tamarind 
Shop, Los Angeles, in 1966. His recent set of lithographs, "Crime by 
Cuevas," has been widely acclaimed here and abroad. 

The notes for each lithograph were prepared by Mr. Luis Lastra, a close 
friend of the artist and editor of the Art of Americas Bulletin. Mr. Lastra 
was assisted by Miss Jane Harmon, of the Visual Arts Division of the Pan 
American Union, who provided the translation from the Spanish text. The 
prefatory note was prepared by David P. Stang. 



PREFATORY NOTE 

Throughout this report on violence and crime, we approach 
the subject matter armed only with the tool of reason. We 
attempt to analyze the problems of a violent society by stand- 
ing at a distance, free from emotional involvement, employing 
dispassionate rationality. 

In one regard, this is a good thing. It is good because, in a 
sense, it is all we are capable of doing. Yet in another sense, 
limited by our training, we attempt to evaluate a subject the 
very nature of which involves irrationality. Reason can only 
deal with that which is susceptible of being comprehended by 
reason. 

Violence and crime, for the most part, are not phenomena 

237 



238 Report of the Task Force on Law and Law Enforcement 

which represent the product of man's rational achivements. On 
the contrary, violence and crime are more often the expression 
of what the ancient philosophers called passion. 

The jealous husband, although capable of reason, abandons 
it by momentarily subordinating rationality to a fit of passion. 
He murders his unfaithful wife, or her lover, or both, and 
sometimes himself as well. 

The law in its majesty makes allowances for this. Instead 
of convicting the killer of murder in the first degree which 
by definition involves a cold blooded pre-mediation, supposedly 
free from compulsion the law finds the killer guilty of mur- 
der in the second degree or of manslaughter. These latter of- 
fenses are meant to apply to persons whose principal motiva- 
tion was not reason but passion. 

Yet ironically the combination of reason and law from the 
time of its ancient origins has been unable to prevent jealous 
husbands from taking to fits of passion which result in the 
murder of their unfaithful wives. So too it has been unable 
to prevent Cains from slaying Abels, parents from maliciously 
beating their children. Nor has it been able to deter the emer- 
gence of men like the Marquis De Sade, Jack The Ripper, or the 
Boston Strangler. Neither law nor reason was able to prevent 
the Israelites from battling the Philistines or the East from 
waging war with the West. Nor was either reason or law able 
to prevent the violent clashes between labor and management 
which occurred in this country earlier in the century, the vio- 
lence on the campuses and in the ghettos which has happened 
more recently, or the violence of high suicide rates in the mod- 
ern, tranquil, law-abiding countries of Scandinavia. 

In a sense, then, in our applying reason and law to the sub- 
ject of crime and violence, we are handicapped. Worse yet, our 
efforts are bounded not only by the limits of the tool we utilize 
to treat the subject, but by the pervasive, complex and irre- 
pressible nature of the subject itself. We are not dealing with a 
phenomenon which has had its birth in America of the nineteen- 
sixties, but with a problem that has existed since mankind 
was born. 

We are here dealing with one small variation on the ageless 
theme of good and evil, of right and wrong, of love and hate. 
There is a mystery about this topic which transcends reason 
and which inescapably penetrates to the very core of the hu- 
man soul. 

Carl Jung, the distinguished analyst and moral philosopher, 
once noted : 

Even on the highest peak we shall never be "beyond 
good and evil," and the more we experience of their inex- 



A Portfolio of Lithographs on Crime and Violence 239 

tricable entanglement the more uncertain and confused 
will our moral judgment be. In this conflict, it will not 
help us in the least to throw the moral criterion on the 
rubbish heap and to set up new tablets after known pat- 
terns; for, as in the past, so in the future the wrong we 
have done, thought, or intended will wreak its vengeance 
on our souls, no matter whether we turn the world upside 
down or not. Our knowledge of good and evil has dwindled 
with our mounting knowledge and experience, and will dwin- 
dle still more in the future, without our being able to 
escape the demands of ethics. 

But in each of us there is a desire to forget that we must 
constantly choose and be bound by our choices. The more diffi- 
cult the moral decision the more we try to avoid it. As Dostoy- 
evsky so dramatically noted in his Brothers Karamazov: 

Man prefers peace, and even death, to freedom of choice 
in the knowledge of good and evil. . . . Nothing is more 
seductive for man than his freedom of conscience, but 
nothing is a greater cause of suffering. 

Indeed, as haunting as the conflict we often face in trying 
to repress almost irrepressible impulses to do evil to our fellow 
man, or to ourselves, is the companion dilemma of being forced 
so often to make "free" moral choices without knowing with 
comfortable certainty that what we choose is right or wrong. 

It is this rhythm of good and evil which plays in the -soul 
of each of us, beyond the limits of reason and law, that Cuevas 
so forcefully portrays in his series of lithographs on crime. 
It is the frightening almost Sisyphean constancy of the 
drama of good and evil, of victim and criminal, that is the 
theme of his art and the limitation of our Report. 



240 



Report of the Task Force on Law and Law Enforcement 




I j 31 I, ' 1 



A Portfolio of Lithographs on Crime and Violence 241 

The first lithograph in this Cuevas portfolio is a self-portrait 
in which the artist represents himself as a juvenile delinquent. 
Curiously, it is a self-portrait after death as evidenced by the 
bullet wounds on the forehead. 

All of the elements of the composition emphasize anguish 
and desperation: the complex lines curve down the face dis- 
torting the expression; the intense, fixed look seems to be a 
plea for help, demanding that we participate in the boy's 
drama ; the bullet wounds remind us that it is too late. 

This is a poignant introduction to the series in which the 
artist has placed himself in the role of both criminal and vic- 
tim. In the prints that follow Cuevas suggests that in every 
individual there are latent criminal tendencies as well as re- 
curring fears of being victimized by crime. 

This perception of Cuevas has an almost oriental air about 
it, and is suggestive of the Asian poet Coomarasivamy's state- 
ment that, "In reality, slayer and dragon, sacrificer and victim, 
are of one mind behind the scene. . . ." 



"TITLE PAGE": SELF-PORTRAIT 



242 Report of the Task Force on Law and Law Enforcement 






I 






-x. 



A Portfolio of Lithographs on Crime and Violence 243 

The horror film and the literature of the macabre have had 
a haunting and inescapable impact on Cuevas since his child- 
hood. Here, the artist introduces us to his private gallery of 
sinister characters, existing in part in reality and in part in 
his imagination. His figures are not unlike those drawn by 
Grosz, who presented the decadent cafe society of the 1930's, 
or Hogarth, who depicted an 18th-century life style of de- 
pravity. 

In the lineup for identification are Raskalnikov, the murderer 
relentlessly pursued by his conscience; the Marquis de Sade, 
with his brilliant imagination given to sado-masochistic adven- 
tures; the Man and the Beast, the romantic representation of 
the eternal struggle between reason and control versus mad- 
ness and violence. Here too is the representation of good and 
evil, the Good being the fat creature who indifferently holds a 
poster with the image of the Quasimodo-like figure, the Bad. 

At the bottom center of the print are two figures whose necks 
are attached by a single rope; the movement of each would 
necessarily effect the other. A steel ball representing fate is 
suspended between them. Should the ball drop the figures' 
heads would violently collide. 



"HISTORY OF CRIME" 



244 



Report of the Task Force on Law and Law Enforcement 




A Portfolio of Lithographs on Crime and Violence 245 

Rasputin was the victim of one of the most sordid crimes 
in political history. Because of his influence over Empress 
Alexandra, whom he seduced by means of his personal magne- 
tism, doubtful religious doctrines, and a supposed knowledge of 
medical remedies that would cure her son, he became one of 
the principal figures in the court of Czar Nicholas II, advising 
him on all matters of political importance. 

Outraged by his unscrupulous tactics as well as by the fact 
that their positions had been usurped by a peasant, a group 
of nobles invited Rasputin to a feast on Christmas Day, 1917, 
for the sole purpose of killing him. He was poisoned, stabbed, 
and shot and, incredibly, was still breathing when thrown into 
the Neva River. A year later his body was exhumed, exhibited 
publicly and burned. 

By his choosing to do a portrait of Rasputin, Cuevas is sug- 
gesting the calamity which necessarily follows when men cast 
aside the universal moral code of love, dignity and self-respect. 
That violence breeds violence is borne out by the fate of this 
infamous man. 



'RASPUTIN" 



246 



Report of the Task Force on Law and Law Enforcement 



**3 





A Portfolio of Lithographs on Crime and Violence 247 

In this lithograph Rasputin seems to foresee his fate: his 
expression is brutal and hypnotic; his hands are clasped in a 
frozen position. 

Rasputin was the product of the oppressed Russian peasantry, 
and his ambitions developed in direct proportion to the social 
abuses he suffered. Once in the position of power, he, how- 
ever, became the oppressor and the object of hatred for the 
group temporarily subdued. As the friction developed between 
the rulers and the ruled, the situation became increasingly 
unstable and resulted in violence. The violence escalated and 
Rasputin was cruelly put to death. The advice of Steinbeck in 
his Grapes of Wrath came too late to help Rasputin: "Repres- 
sion works only to strengthen and knit the repressed." 



"DREAMS OF RASPUTIN" 



248 



Report of the Task Force on Law and Law Enforcement 



i -*:.:# 




A Portfolio of Lithographs on Crime and Violence 249 

Cesar and Lucretia Borgia's public appearances were sub- 
ject to the most rigorous protocol, always highly elegant, but 
never lacking an element of surprise. One biographer notes that 
Cesar always received his ambassadors while in a reclining 
position or on horseback, never seated or standing. Lucretia 
was never seen by her subordinates without her jewels, and 
her formal audiences had the aura of theatrical productions 
common to Hollywood in the 1930's. 

Unfortunately, their moral standards were not subject to 
the same discipline. The Borgia's castle was a devil's arsenal 
floors and walls had false openings that led to suffocating dun- 
geons; folding screens and brocade curtains hid spears and 
darts. Unsuspecting victims were killed by lethal poisons con- 
tained in rings, flowers, gloves and handkerchiefs. 

Cuevas has drawn the Borgias with a light, mannerist ac- 
cent. There is a touch of the medieval in the velvet costumes 
and jewelry; the Borgias' expressions are cold and penetrating. 
Ironically, Cesar with each hand makes the sigh of the jetta- 
tori, which, in the anceint Italian culture, was thought to be 
capable of warding off evil. 



"BORGIA" 



250 



Report of the Task Force on Law and Law Enforcement 




A Portfolio of Lithographs on Crime and Violence 251 

Plutarch would not have objected to including in his Parallel 
Lives the biographies of Jack the Ripper and the Boston Stran- 
gler. The two had much in common: both carried out their 
murders systematically; their victims were women; and in the 
case of each victim there was evidence of sexual abuse. The 
Boston Strangler was much less discriminating in that his vic- 
tims were both young and old and belonged to no particular 
class. 

Jack the Ripper limited his victims to a specific type the 
prostitutes whom he encountered during the night in London's 
White Chapel district. Scotland Yard never discovered the iden- 
tity of Jack the Ripper, but because of his skillful dismem- 
berment of the bodies, it was conjectured that he might be a 
medical student or perhaps a surgeon. 

What similarities can be found between the lives of the two 
men, who lived respectively in the London of the 1880's and 
the Boston of this era, that might have contributed to the 
development of such distorted and diseased minds? In both 
cases it could have been a nightmarish childhood accentuated 
by parental neglect and the tensions of the hostile center-city 
environment. 



'JACK THE RIPPER" 



252 



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A Portfolio of Lithographs on Crime and Violence 253 

Whether in Mexico or elsewhere, Cuevas constantly makes 
sketches which he later develops into finished drawings. A 
critic has referred to his work as "a roving reporter's nota- 
tions of visual images." 

Following the tragic assassination of Robert Kennedy, Cuevas 
commented he was fearfully reminded of the haunting simi- 
larity of his own sketch books and the notebook of Sirhan 
Sirhan. 

Two self-portraits of the artist are drawn on the upper part 
of the page. Here he again depicts himself as both the assassin 
and the victim. Although the theme of the political assassina- 
tion is suggested, a new element is introduced. The murderer 
commits an act of vendetta; he believes his crime to be mor- 
ally justified. 

On the lower half of the print, Cuevas has drawn a sadistic 
physician, who performs ghoulish experiments on his patients. 



"FROM MY SKETCHBOOK" 



254 



Report of the Task Force on Law and Law Enforcement 




A Portfolio of Lithographs on Crime and Violence 255 

Cuevas dispassionately depicts the scene moments following 
a murder. The character at the left appears tortured and at 
the same time aloof, almost melancholy. At his right, his victim 
lies in a slumped position, dead from bullet wounds. The title 
"L' Amour Fou" indicates that the murder was committed out 
of jealous rage, so typical of many homicides. 

Human emotions, Cuevas suggests, sometimes seem no longer 
capable of being restrained when one confronts a crisis situa- 
tion. Whether it be the case of a child who experiences hunger 
and loneliness or an adult who feels humiliated or rejected, 
violence is often the result. 

The fear of punishment and the knowledge of the inherent 
wrongness of violent acts too often are incapable of deterring 
the expression of homicidal impulses. The tone of this print 
seems to convey a sense of hopelessness in dealing with this 
irrational aspect of man's nature. 



"L'AMOUR FOU" 



256 



Report of the Task Force on Law and Law Enforcement 




A Portfolio of Lithographs on Crime and Violence 257 

There has long been controversy over the interrelation be- 
tween the creative processes of the mind and the destructive 
or neurotic processes, which often seem to clash in the lives of 
artists. Freud provided a new insight into this problem with 
his interpretation of dreams and his study of Leonardo de Vinci, 
relating sickness with creativity. 

The life of Van Gogh (shown on the right) was an example of 
this struggle. It contained a series of manic-depressive cycles, 
in which he alternately experienced suicidal and homicidal 
impulses separated by periods of love and compassion for his 
fellow man. Shown here at the left is Gauguin, for whom he 
had an obsessive hatred and a recurring desire to kill. . . . Van 
Gogh's life and his work represent the existential conflict be- 
tween a sense of futility which breeds self-destruction and hope 
from which can evolve freedom. 



"VAN GOGH'S CRIMINAL OBSESSIONS" 



258 



Report of the Task Force on Law and Law Enforcement 




A Portfolio of Lithographs on Crime and Violence 259 

The modern-day prison is a flagrant anarchronism in the 
midst of a so-called progressive society. The primary objective 
of the penitentiary system is supposedly the rehabilitation of 
the criminal with a view to his reintegration into society. But 
far from accomplishing its objective, the system tends rather 
to perpetuate and even reinforce the habits and attitudes of 
criminals which were originally responsible for their incar- 
ceration. 

With the assistance of his brother, who is a psychiatrist, 
Cuevas was permitted to visit Mexican prisons in 1954. His 
drawings at that time reflect the "black period" of Goya. In 
this lithograph it is evident that his memories of that experi- 
ence are still vivid. The figure of the prisoner is distorted in 
cubist volumes to provoke a monstrous image. His arms and 
legs are useless stumps; his expression is one of strange pas- 
sivity, lacking hope, expecting nothing. 



"MAN IN JAIL" 



260 



Report of the Task Force on Law and Law Enforcement 



BB 








A Portfolio of Lithographs on Crime and Violence 261 

Cuevas here portrays members of the family of organized 
crime who ruthlessly derive their livelihood by exploitation 
of human weaknesses. The group owes its subsistence to drug 
traffic, prostitution, gambling and extortion. 

There is a ghostlike quality to the figures shown in this 
lithograph and an impression of an era of decades past sug- 
gested by the spotted background and the characters' mode 
of dress. It is almost as if one were looking at a photograh 
of a lineup of members of a crime syndicate, perhaps taken in 
Chicago during the 1920's or 1930's. 

Cuevas' descriptive powers are strongly evident. On the right, 
there is a young man with open jacket and striped pants pos- 
ing an attitude of arrogance, toughness and hostility. His is 
the role of the apprentice. The two "gentlemen" dressed in dark 
suits are the intermediaries or "strong men" of the organization. 
The "master mind" of the syndicate sits in a wheelchair; and 
to his left indicated faintly with the number eight on his back 
is the hired assassin. 

The artist ends his series of lithographs on crime with the 
seemingly indestructible element of organized crime which, like 
the phenomenon of crime itself, survives society's manifold 
attempts to stamp it out. 



"WANTED" 



PART THREE 
THE AGENCIES OF LAW ENFORCEMENT 



263 



CHAPTER 13 
THE NONSYSTEM OF CRIMINAL JUSTICE* 



Despite broad agreement that crime is increasing faster than 
the a unity 01 mosc cities to cope with it, deep division prevails 
among those who prescribe anticrime remedies. Energy that 
ought to be devoted to action programs to reduce crime is being 
poured instead into words into an escalating conflict between 
proponents of the hard line and of the soft line. Political cam- 
paigns, legislative hearings and court arguments find intelligent 
citizens taking all-or-nothing positions on such questions as : Are 
law enforcement officers handcuffed or brutal? Should we sup- 
port or reform the local police? Should prosecution policy be 
tough or selective? Should prison sentences be long or flexible? 

While to an informed observer the answers to such questions 
are complex, a multitude of persons holding positions of auth- 
ority or power behave as if they were simple. Instead of seeking 
the very large common ground on which the hard line and the 
soft line converge, law enforcement "experts" have shown an 
increasing tendency to identify symbolic issues, such as Supreme 
Court decisions, civilian review boards, capital punishment and 
preventive detention, as if they held the keys to the crime prob- 
lem. 

The anger with which such issues have been debated in recent 
years has contributed little to public confidence, to the safety 
of streets or to the effectiveness of criminal procedures. It has, 
however, caused actual reform in the institutions of public order 
and justice to lag far behind the excellent recommendations of 
three presidential crime commissions (National, D.C., and Civil 
Disorders) which have reported since the end of 1966. 

The chapters which follow contain discussions of some of the 
reforms which need to be addressed promptly if the sad record 
of the 1960's is to be bettered as law enforcement and criminal 
justice face the challenge of the 1970's. As a backdrop for those 
discussions, this chapter considers three questions: 

*This chapter was prepared by Daniel J. Freed, Professor of Law and 
Its Administration at Yale Law School and formerly Director of the Office 
of Criminal Justice in the U.S. Department of Justice. 

265 



266 Report of the Task Force on Law and Law Enforcement 

1. What does a typical criminal justice system look like 
today? 

3. How well is that system integrated into the program 
of cities for meeting the problems of urban inadequacy ? 

3. What new directions should comprehensive reform of 
the criminal justice system take? 

The responses set forth below sketch a profile of today's crim- 
inal justice process and suggest some of the ingredients for its 
improvement. 

THE SYSTEM: THEORY VS. PRACTICE 

Our society has commissioned its police to patrol the streets, 
prevent crime, arrest suspected criminals, and "enforce the law." 
It has established courts to conduct trials of accused offenders, 
sentence those who are found guilty and "do justice." It has cre- 
ated a correctional process consisting of prisons to punish con- 
victed persons and programs to rehabilitate and supervise them 
so that they might become useful citizens. 

It is commonly assumed that these three components law 
enforcement (police, sheriffs, marshals), the judicial process 
(judges, prosecutors, defense lawyers) and corrections (prison 
officials, probation and parole officers) add up to a "system" 
of criminal justice. The system, however, is a myth. 

A system implies some unity of purpose and organized interre- 
lationship among component parts. In the typical American 
city and state, and under federal jurisdiction as well, no such re- 
lationship exists. There is, instead, a reasonably well-defined 
criminal process, a continuum through which each accused 
offender may pass: from the hands of the police, to the jurisdic- 
tion of the courts, behind the walls of a prison, then back onto 
the street. The inefficiency, fallout, and failure of purpose during 
this process is notorious. 

The dismal crime control record to date is well known. Accord- 
ing to the 1967 report of the President's Commission on Law En- 
forcement and Administration of Justice, well over half of all 
crimes are never reported to the police. Of those which are, fewer 
than one-quarter are cleared by arrest. Nearly half of all arrests 
result in the dismissal of charges. Of the balance, well over 90 
percent are resolved by a plea of guilty. The proportion of cases 
which actually go to trial is tiny, representing less than 1 percent 
of all crimes committed. A large portion of those convicted are 
sentenced to jails or penal institutions; the balance are released 
under probation supervision. 

Nearly everyone who goes to prison is eventually released, 
often under parole supervision. Between two-fifths and two-thirds 
of all releasees are sooner or later arrested and convicted again, 



The Nonsystem of Criminal Justice 267 

thereby joining the population of repeater criminals we call re- 
cidivists. 

Nearly every official and agency participating in the criminal 
process is frustrated by some aspect of its ineffectiveness, its 
unfairness or both. At the same time, nearly every participant 
group itself is the target of criticism by others in the process. 

Upon reflection, this turmoil is not surprising. Each partici- 
pant sees the commission of crime and the procedures of justice 
from a different perspective. His daily experience and his set of 
values as to what effectiveness requires and what fairness re- 
quires are therefore likely to be different. As a result, the mission 
and priorities of a system of criminal justice will in all likeli- 
hood be defined differently by a policeman, a trial judge, a prose- 
cutor, a defense attorney, a correctional administrator, an appel- 
late tribunal, a slum dweller and a resident of the suburbs. 

For example : The police see crime in the raw. They are exposed 
firsthand to the agony of victims, the danger of streets, the vio- 
lence of lawbreakers. A major task of the police officer is to track 
down and arrest persons who have committed serious crimes. It 
is often discouraging for such an officer to see courts promptly 
release defendants on bail, or prosecutors reduce charges in order 
to induce pleas of guilty to lesser offenses, or judges exclude in- 
criminating evidence, or parole officers accept supervision of re- 
leased prisoners but check on them only a few minutes each 
month. 

Yet the police themselves are often seen by others as contribut- 
ing to the failure of the system. They are the target of charges of 
ineptness, discourtesy, brutality, sleeping on duty, illegal 
searches. They are increasingly attacked by large segments of the 
community as being insensitive to the feelings and needs of the 
citizens they are employed to serve. 

Trial judges tend to see crime from a more remote and neutral 
position. They see facts in dispute and two side to each issue. 
They may sit long hours on the bench in an effort to adjudicate 
cases with dignity and dispatch, only to find counsel unprepared, 
or weak cases presented, or witnesses missing, or warrants un- 
served, or bail restrictions unenforced. They find sentencing to 
be the most difficult of their tasks, yet presentence information 
is scanty and dispositional alternatives are all too often thwarted 
by the unavailability of adequate facilities. 

Yet criminal courts themselves are often poorly managed and 
severely criticized. They are seriously backlogged. All too many 
judges are perceived as being inconsiderate of waiting parties, 
police officers and citizen witnesses. Throughout the country, 
lower criminal courts tend to be operated more like turnstiles 
than tribunals. 



268 Report of the Task Force on Law and Law Enforcement 

Corrections officials enter the crime picture long after the 
offense and deal only with defendants. Their job is to maintain 
secure custody and design programs which prepare individual 
prisoners for a successful return to society. They are discouraged 
when they encouter convicted persons whose sentences are 
either inadequate or excessive. They are frustrated by legislatures 
which curtail the flexibility of sentences and which fail to appro- 
priate necessary funds. They are dismayed at police officers who 
harass parolees, or at a community which fails to provide jobs or 
refuses to build halfway houses for ex-offenders. 

Yet jails are notoriously ill-managed. Sadistic guards are not 
uncommon. Homosexual assaults among inmates are widely 
tolerated. Prison work usually bears little relationship to em- 
ployment opportunities outside. Persons jailed to await trial 
are typically treated worse than sentenced offenders. Correc- 
tional administrators are often said to be presiding over schools 
in crime. 

In the mosaic of discontent which pervades the criminal pro- 
cess, public officials and institutions, bound together with private 
persons in the cause of reducing crime, each sees his own 
special mission being undercut by the cross-purpose, frailties 
or malfunctions of others. As they find their places along the 
spectrum between the intense concern with victims at one end, 
and total preoccupation with reforming convicted lawbreakers at 
the other, so do they find their daily perceptions of justice vary- 
ing or in conflict. The conflicts in turn are intensified by the 
fact that each part of the criminal process in most cities is over- 
loaded and undermanned, and most of its personnel underpaid 
and inadequately trained. 

Under such circumstances it is hardly surprising to find 
in most cities not a smooth functioning "system" of criminal 
justice but a fragmented and often hostile amalgamation of crim- 
inal justice agencies. To the extent they are concerned about 
other parts of the "system," police view courts as the enemy. 
Judges often find law enforcement officers themselves violating 
the law. Both see correctional programs as largely a failure. Many 
defendants perceive all three as paying only lip service to indi- 
vidual rights. 

Mechanisms for introducing some sense of harmony into the 
system are seldom utilized. Judges, police administrators and 
prison officials hardly ever confer on common problems. Senten- 
cing institutes and familiarization prison visits for judges are the 
exception rather than the rule. Neither prosecuting nor defense 
attorneys receive training in corrections upon which to base in- 
telligent sentencing recommendations. 



The Nonsystem of Criminal Justice 269 

Nearly every part of the criminal process is run with public 
funds by persons employed as officers of justice to serve the same 
community. Yet every agency in the criminal process in a sense 
competes with every other in the quest for tax dollars. Isolation 
or antagonism rather than mutual support tends to characterize 
their interwined operations. And even when cooperative efforts 
develop, the press usually features the friction, and often aggra- 
vates it. 

One might expect the field to be flooded with systems analysts, 
management consultants and publicly-imposed measures of or- 
ganization and administration in order to introduce order and 
coordination into this criminal justice chaos. It is not. 

A recognized profession of criminal justice system administra- 
tors does not exist today. In fact, most of the subsystems are 
poorly run. For example, court administrators are rare, and 
court management by trained professionals is a concept that is 
taking hold very slowly. 

The bail "system," which should involve coordination among 
at least a half dozen agencies, is presided over by no one. Few 
cities have neutral bail agencies to furnish bail-setting magis- 
trates with reliable background data on defendants. Prosecutors 
usually ignore community ties and factors other than the 
criminal charge and the accused's criminal record in recommend- 
ing bail. Defense lawyers rarely explore nonmonetary release 
conditions in cases involving impecunious clients. Detention re- 
ports on persons held long periods in jail prior to trial are rarely 
acted on by courts, and bail review for detainees is rarely re- 
quested. Enforcement of bail restrictions and forfeitures of bond 
for bailjumpers are unusual. Bail bondsmen go unregulated. 

Effective police administration is hard to find. The great 
majority of police agencies are headed by chiefs who started as 
patrolmen and rose through the ranks, whose higher education is 
scanty, whose training in modern management techniques, 
finance, personnel, communications and community relations is 
limited, and whose isolation is profound. Lateral entry of police 
administrators from other departments or outside sources is 
usually prohibited by antiquated Civil Service concepts. 

Apart from lack of leadership, the process of crime control 
in most cities has no central collection and analysis of criminal 
justice information. It has no focal point for formulating a 
cohesive crime budget based on system needs rather than indi- 
vidual agency requests. It has no mechanism for planning, initia- 
ting or evaluating systemwide programs, or for setting priorities. 
It has no specialized staff to keep the mayor or other head of 
government regularly informed of the problems and progress 
of public safety and justice. Crime receives high-level attention 



270 Report of the Task Force on Law and Law Enforcement 

only as a short-term reaction to crisis. An effective system does 
not exist. 

This bleak picture should not obscure occasional bright spots. 
Within recent years, scattered about the country, some promising 
developments have appeared : innovations have been introduced, 
new leadership has emerged, modern facilities have been built, a 
systems approach has been tried. While the impact has been 
small, hopes have been raised. States here and cities there have 
shown that crime control and justice can be improved. The ques- 
tion is whether isolated reforms can grow into a pattern. 

CRIMINAL SANCTIONS AS A SOLUTION TO 
URBAN PROBLEMS 

The internal disorganization of the criminal justice system is 
not its only handicap. Even if it functioned like a well-oiled ma- 
chine, it would without other changes probably fail to achieve 
either a substantial reduction in most categories of conduct now 
labelled as crime, or a material increase in public respect for law. 

The liklihood of failure is promoted by two traditional fea- 
tures of criminal law administration: (1) the criminal sanction 
applies by statute to much more human behavior than it can 
realistically control, and (2) the criminal process operates too 
largely in isolation from other programs aimed at the breeding 
grounds of antisocial behavior. Until the target conduct of crim- 
inal penalties can be narrowed and the myth of full enforcement 
dispelled, and until crime reduction is perceived as requiring 
better education, housing, health and employment opportunities 
for would-be offenders, the criminal process will continue to 
suffer from demands that it accomplish more than is possible 
with less help than is indispensable to success. 

SCOPE OF SANCTIONS 

The case for limiting the use of the criminal sanction has 
been advanced most effectively by Professor Sanford Radish in 
his Annals article on The Crisis of Overcriminalization (1967) 
and by Professor Herbert L. Packer in The Limits of The Crim- 
inal Sanction (1968). For present purposes, their relevant point 
is that the demands made upon the police, the courts and the 
penal process, far exceed the capacity of these organizations col- 
lectively to investigate, apprehend, prosecute, adjudicate and cor- 
rect individual behavior. 

The overload means that full enforcement, speedy trial, fair 
procedure and effective sentencing have become slogans rather 
than facts. The crimes of violence society fears most murder, 
forcible rape, robbery, assault are currently processed through 
many of the same channels as conduct which injures third parties 



The Nonsystem of Criminal Justice 271 

least, e.g., prostitution, homosexuality, intoxication, gambling, 
marijuana use, vagrancy, and other minor offenses. The disabling 
impact on law enforcement is suggested by the fact that the 
police are overloaded with minor cases at a time when their 
clearance rate for serious crimes in virtually every city is less 
than 25 percent. 

Without condoning conduct which offends prevailing moral 
standards, a community could undoubtedly act more expeditiously 
and effectively against violent invasions of person and property 
if fewer of its law enforcement resources were detoured into 
crime objectives of low priority. Finding alternative ways of 
handling low priority offenses would make particular sense in 
the case of conduct which is extremely difficult to detect (because 
it occurs voluntarily and often inside private homes), produces 
no injury to another person, and offers little likelihood of deter- 
rence or cure even if criminal penalties are imposed. The spor- 
adic and discriminatory enforcement, the charges of abuse of 
police discretion, the assembly-line justice and the ineffective 
sanctions which characterize most of the present effort to deal 
with these lesser offenses tends to perpetuate cynicism and dis- 
respect for law. 

The search for nonpenal techniques to control behavior involv- 
ing consenting parties should be viewed not as a soft approach to 
lesser offenses, but as a realistic route to meaningful sanctions 
against crimes that injure society the most. Some forms of 
conduct should probably be eliminated entirely from regulation 
by statute. Some, like intoxication, should be dealt with through 
voluntary health reforms, such as those being pioneered by the 
Manhattan Bowery Project. Others, like traffic infractions, might 
be transferred to an administrative or regulatory process, as 
California and New York have done. But until the wide range 
of behavior now subject to arrest, trial and sentencing is materi- 
ally reduced, the police, courts and prisons are likely to remain 
overwhelmed and underachieving. 

RELATIONSHIP TO CIVIL PROGRAMS 

Just as the conduct amenable to criminal sanctions needs to be 
narrowed, so should the range of community-based programs tied 
to the criminal process be broadened. Education, jolp training, 
medical care and shelter are needed at least as much by juven- 
iles and adults charged with crime as by their counterparts in 
the deprived community who have not been so charged. The 
criminal justice process cannot continue to function in isolation 
from the more affirmative social programs for improving indi- 
vidual lives. The objective of integrating criminal and noncrim- 
inal programs is easy to advocate but difficult to achieve. 



272 Report of the Task Force on Law and Law Enforcement 

For example, a major goal of an offender's contact with the 
criminal process is said to be corrective rehabilitation followed 
by reintegration into the community, with enhanced respect for 
law. Yet the opposite is often true : the typical prison experience 
is degrading, conviction records create a lasting stigma, decent 
job opportunities upon release are rare, voting rights are 
abridged, military service options are curtailed, family life dis- 
ruptions are likely to be serious, and the outlook of most ex-con- 
victs is bleak. The expectation of the community that released 
offenders will be "corrected" is matched by outdated laws and 
community responses which tend strongly to defeat those expec- 
tations. 

This unfortunate pattern is not confined to the handling of 
convicted offenders. The odds are high that unconvicted per- 
sons will encounter similar, and sometimes greater, constraints. 
Cities are full of people who have been arrested but not con- 
victed, and who nevertheless served time in jail and were 
stigmatized in other seriously disabling ways. 

Thus, local facilities in which arrested persons are detained 
prior to conviction are typically worse, in terms of overcrowd- 
ing and deterioration, than the prisons to which convicted 
offenders are sentenced. Accused first offenders are mixed indis- 
criminately with hardened recidivists. The opportunities for 
recreation, job training or treatment of a nonpunitive character 
are almost nil. 

If released, a person's arrest record alone becomes a sub- 
stantial liability. In many segments of a community, the dif- 
ference between arrest status and that of conviction is indis- 
criminately regarded as a technicality. 

In its present state of disrepair, the criminal process when 
it operates alone at best performs a holding function. This 
function may provide society respite when a serious offender 
with a long record and minimal prospect of improvement is 
identified. In such cases, denial of release for as long as the law 
allows may seem reasonable, even though almost all convicts 
are eventually released. 

In nearly every case, however, a city candid about its own 
criminal justice deficiencies needs to ask whether full enforce- 
ment aimed at detention, prosecution and imprisonment, will 
in the long run reduce or reinforce criminality. 

The traditional assumption has been that punishment will 
reduce crime. In attempting to separate myth from reality, 
however, it is worth noting that experienced judges have re- 
sorted increasingly in recent years to various forms of post- 
conviction probation. They have done so after weighing the 
possibilities for rehabilitation if the offender is so released 



The Nonsystem of Criminal Justice 273 

against the usually disastrous prognosis which would accom- 
pany his incarceration. It is a painful choice, little understood 
by the public. But the decision to seek correction of an offender 
in the community reflects less a compassionate attitude toward 
law-breakers, more a hardheaded recognition, based on data, 
that long-term public safety has a better chance of being pro- 
tected. 

The alternatives are no longer simply prison or outright re- 
lease. Integrating the criminal process with community pro- 
grams requires closely supervised forms of release: daytime 
work release, release in the custody of reliable counselors, pre- 
release guidance centers, alcoholism and narcotic treatment 
centers, halfway houses. 

Community-based programs will, of course, fail equally with 
prisons if the resources and attitudes which accompany them 
are no better. Identifying the offender's needs in terms of edu- 
cation, job training, employment, family aid, hospitalization 
and shelter, and providing for them, must be seen as inuring 
to society's benefit as well as his own. 

The stage at which these services are furnished should when- 
ever possible be advanced from after conviction to after arrest. 
Voluntary correctional programs should be offered without a 
prior finding of guilt. As urged by the National Crime Commis- 
sion, accused offenders should be routed away from the criminal 
process at the earliest stage that vindication of the community's 
interest permits. 

Most such efforts will tend to reduce the cost of criminal 
prosecution by eliminating it when it is not needed, and to 
increase the speed and firmness of prosecution for hardened 
offenders for whom no meaningful alternative exists. Public 
funds thus diverted from the revolving door functions of im- 
prisonment, warehousing, degradation and contamination can 
be invested instead in community programs where the crime 
reduction payoff is higher. 

GUIDELINES FOR CRIMINAL JUSTICE REFORM 

Against this background of the criminal justice nonsystem, 
and unrealistic expectations as to what its sanctions can 
achieve, emerged the 1967 Report of the President's Commis- 
sion on Law Enforcement and Administration of Justice and the 
1968 Omnibus Crime Control and Safe Streets Act. In theory, 
the 1968 legislation provided the framework and the funds for 
massive federal grants to the states with which the compre- 
hensive and detailed recommendations of the President's Com- 
mission could be implemented. In fact, early performance has 
been handicapped by unrealistic deadlines, inadequate funds 



274 Report of the Task Force on Law and Law Enforcement 

and a shortage of experienced manpower to convey a criminal 
justice system approach to the states. 

During the first year since its launching, the federal pro- 
gram to assist states and cities in dealing with crime has come 
under attack from several sources, e.g., the Conference of May- 
ors, the National League of Cities, the National Urban Coalition. 
Instead of emphasizing federal leadership to guide the develop- 
ment of sound criminal justice systems at the local level, as 
originally proposed by the President's Commission, the Act 
has assigned the leadership role in distributing block grants 
and guiding their application to the states. State planning 
groups have failed in many instances to represent the full 
range of citizen as well as official interests in crime control. 
Friction has erupted between cities and their state govern- 
ments over the question whether funds should be allocated on 
the basis of population or crime rate. Agencies of the criminal 
process have tended to plan their own individual programs by 
themselves. Crime control has continued to remain isolated 
from social programs aimed at employment, education, housing 
and health. Outside expertise to augment local planners has 
remained scarce. The consequence, in many instances, has been 
pedestrian state plans. 

Unless some new ingredients are added, deficiencies such as 
these foreshadow the channeling of massive federal funds into 
old programs, and into higher salaries for old-line personnel. 
They will thereby tend to reinforce rather than reform the 
inadequate criminal justice institutions and to perpetuate the 
polarized attitudes which exist today. 

There are, of course, no short cuts to the reduction of crime. 
More money and personnel, new equipment and revised pro- 
cedures will all be essential to the goal. Yet without new or- 
ganizations and relationships to help spend money wisely and 
use personnel well, history suggests that significant changes 
are unlikely. 

Reform in the criminal field has a long record of excellent 
recommendations never carried out. A substantial portion of 
the National Crime Commission's proposals in 1967 are, for ex- 
ample, remarkably similar to those urged by the Wickersham 
Commission established by President Hoover 37 years earlier. 
Despite that Commission's equally impressive documentation, 
conservatism and presidential prestige, little follow-through 
was mounted. Experience with commissions at the state and 
local levels shows similar results. Library shelves are crowded 
with reports on police inadequacy, court chaos and prison dis- 
grace, and reform proposals which never produced effective 
action. 



The Nonsystem of Criminal Justice 275 

Moreover, money poured into the crime problem does not 
by itself buy crime reduction. Wealthy states and localities 
which have spent vast sums for crime control have become no 
more noticeably crime-free than jurisdictions which haven't. 
The District of Columbia, with a superb crime commission re- 
port, constant oversight by Congress and federal money close 
by has failed to achieve anything resembling what two Presi- 
dents have called a model system of criminal justice. 

This pattern suggests the existence of substantial built-in 
obstacles to change. It suggests that unless much more atten- 
tion is spotlighted on the inability and unwillingness of present 
crime control systems to effectuate reform, new money may 
go down old drains. Vexing problems of politics, organization 
and leadership underlie the maintenance of the status quo and 
need to be faced up to directly. 

In the search for new approaches to the implementation of 
crime commission recommendations, two promising but com- 
paratively untried strategies have been suggested by recent 
experience on the frontiers of criminal justice in several cities: 
(1) a program to coordinate public criminal justice agencies 
more effectively, and to link them to companion social programs, 
by placing them under the supervision of a new high-level crim- 
inal justice staff or agency; and (2) a program to develop private 
citizen participation as an integral operating component, rather 
than a conversational adjunct, of criminal reform. The success 
of citizen participation will in many ways be dependent on the 
establishment of a central criminal justice office. 

THE CRIMINAL JUSTICE AGENCY 

The pervasive fragmentation of police, court and correc- 
tional agencies suggests that some catalyst is needed to bring 
them together. An assumption that public agencies will operate 
consistently can no longer suffice as a substitute for deliberate 
action to make it happen in real life. Arrested offenders the 
common target or client of criminal justice agencies afford 
their only continuous link today. 

Periodic crime commissions which study these agencies, file 
reports and then disappear are valuable, but they are too 
transient for the catalyst role. A law enforcement council 
consisting of chief judges and agency heads who meet periodi- 
cally will likely constitute little more than another committee 
of overcommitted officials. 

A full-time criminal justice office should be considered basic 
to the formation of a criminal justice system. Its optimum form 
and its location in the bureaucracy need to be developed through 
experimentation. 



276 Report of the Task Force on Law and Law Enforcement 

The function could be vested in a criminal justice assistant to 
the mayor or county executive, with staff relationships to execu- 
tive agencies, and liaison with the courts, the bar and the com- 
munity. Or it could be established as a new agency, a ministry 
of justice, possessing authority under the direction of a high 
ranking official of local government (e.g., Director of Public 
Safety or Criminal Justice Administrator) to oversee and co- 
ordinate the police, prosecutorial and correctional functions. Spe- 
cial kinds of administrative ties to the courts and the public de- 
fender office would have to be evolved to avoid undermining the 
essential independence of the judiciary and the adversary role of 
the defense. 

The establishment of a new office or agency should not be per- 
mitted to disparage or overwhelm the diversity of values and 
perspectives which are essential to preserve in the separate 
agencies of a criminal justice system. Otherwise, a single official 
oriented too heavily toward law enforcement or toward indi- 
vidual rights might seriously disturb the balance of an entire 
system. The appointment of a carefully representative criminal 
justice advisory council, composed of key public officials and 
knowledgeable private citizens can help guard against this danger 
as well as promote the broad interests of reform. 

Whatever the form of the new agency, its basic purposes would 
be to allocate resources, to introduce innovation within as well as 
among the constituent agencies so as to improve the fair and 
effective processing of cases and to develop understanding and 
respect among the component parts of the system. For example : 

It would develop a system of budgeting for crime which 
takes account of the interrelated needs and imbalances 
among individual agencies and jurisdictions; 

It would initiate a criminal justice information system 
which, as an adjunct to personnel, budgeting and legisla- 
tive decisions, would embrace not simply crime reports (as 
is typical today), but arrests, reduction of charges, con- 
victions, sentences, recidivism, court backlogs, detention 
populations, crime prevention measures, and other data 
essential to an informed process ; 

It would perform a mediating and liaison role in respect 
to the many overlap functions of the criminal process, 
e.g., development of programs to reduce police waiting 
time in court, to improve pretrial release information and 
control, to enlist prosecutors and defense attorneys in co- 
operative efforts to expedite trials, to bring correctional 
inputs to bear on initial decisions whether to prosecute, 
to improve relations between criminal justice agencies and 
the community ; 



The Nonsystem of Criminal Justice 277 

It would perform or sponsor systems analyses and pe- 
riodic evaluations of agency programs, and encourage in- 
novations and pilot projects which might not otherwise 
have a chance in a tradition-oriented system ; 

It would develop minimum standards of performance, 
new incentives and exchange programs for police, court 
and correctional personnel. 

Most of all, the comprehensive grasp of the system by an 
experienced criminal justice staff would facilitate informed 
executive, judicial and legislative judgments on priorities. It 
would enable wise planning and action by the city with funds re- 
ceived from the Law Enforcement Assistance Administration 
and the state. It would help decide, for example, whether the new 
budget should cover : 

A modern diagnostic and detention center to replace the 
jail, or 1000 policemen; 

Additional judges and prosecutors, or a prior manage- 
ment survey of the courts ; 

A computerized information system or a roving leader 
program for juveniles ; 

New courtrooms or a half-dozen halfway houses. 

For a full-time well-staffed criminal justice office to be suc- 
cessful, it must achieve a balanced perspective within its own 
ranks on the problems of public safety and justice. Practical 
experience in law enforcement, in the assertion of individual 
rights, and in the efficiency and effectiveness of programs must 
be represented in the staff as well as in the advisory council. 

The transition from today's chaotic process to a well-run 
system will not be easy. Most troublesome is the fact that the 
criminal process does not operate within neat political bounda- 
ries. Police departments are often funded at the city level; 
county and state police and sheriffs must also be taken into 
account. Judges are sometimes appointed, sometimes elected, 
and different courts are answerable to local, county and state 
constituencies. Correctional functions are a conglomerate of 
local and county jails, and county and state prisons. Probation 
systems are sometimes administered by the courts, sometimes 
by an executive agency. Prosecutors may be appointed or 
elected, from all three levels of government. Defense lawyers 
usually come from the private sector but are increasingly being 
augmented by public defender agencies. 

Reform will be difficult even within a single jurisdiction, 
where political control of criminal justice agencies is tradi- 
tionally loose. Many mayors have difficulty with the concept of 
the police department as a subordinate agency. "Keep the poli- 



278 Report of the Task Force on Law and Law Enforcement 

tics out of policing" has become a watchword often used by 
inbred police departments to resist the recruitment of new 
leadership from outside police civil service rosters. By defer- 
ing more to police chiefs than to the heads of other critical 
city agencies, mayors avoid making crime their own problem. 
At the same time, the police themselves have avoided responsi- 
bility for crime control, especially in recent years, by attribut- 
ing the increase in crime to Supreme Court decisions. 

If this confusing pattern makes the creation, location, staffing 
and political viability of a criminal justice office difficult, it 
also symbolizes why little semblance of a system exists today. 
Fragmentation is in many ways inherent in the antiquated 
structure of local government. The challenge of crime poses a 
high priority inducement to reallocate political power and make 
government more effective. 

An adequately staffed criminal justice office will be more 
than most cities can currently afford. Its need is not presently 
seen as high on their priority lists. To encourage the develop- 
ment of such offices, the Violence Commission should recommend 
the enactment of federal legislation to provide direct financial 
aid to cities or counties submitting suitable plans for struc- 
turing and staffing them. Caution will have to be exercised 
to avoid funding new operations which are systemwide in 
appearance but prosecutorial in purpose. Some commitment 
should be required to assure the recruitment of a balanced staff. 
The applicant's plan should also spell out in detail the contem- 
plated relationship between the proposed office and the rele- 
vant governmental structure of the city, county and state. 

Helpful insights in establishing such offices may be derived 
from the experience of state law enforcement planning agen- 
cies established under the Omnibus Crime Conrtol and Safe 
Streets Act. Useful precedents may also be found in the crimi- 
nal justice coordinating role developed by Mayor Lindsay's office 
in New York over the past 2 years and now being explored by 
several other cities, and in the experience of the Office of 
Criminal Justice established in the Department of Justice in 
1964 by Attorney General Kennedy, and initially directed by 
Professor James Vorenberg of Harvard. 

PRIVATE CITIZEN INVOLVEMENT 

Government programs for the control of crime are unlikely 
to succeed all alone. Informed private citizens, playing a vari- 
ety of roles, can make a decisive difference in the prevention, 
detection and prosecution of crime, the fair administration of 
justice, and the restoration of offenders to the community. 

Each function is being grossly underplayed today. New citi- 



The Nonsystem of Criminal Justice 279 

zen-based mechanisms are needed at the national and local 
levels to spearhead greater participation by individuals and in 
groups. 

NATIONAL CRIMINAL JUSTICE CONSULTING CENTER 

Enlisting all segments of business and citizen life in con- 
structive crime programs is no easy task. The Federal govern- 
ment has not done it. No existing private organization appears 
to combine enough prestige, knowledge and experience. To serve 
as a catalyst, a national citizen group must know the crime 
problem intimately and broadly, have practical insights into 
its complex solutions and possess a stake in the outcome. 

At least four groups in recent years have developed such a 
background and achieved the desired visibility: the Miller Com- 
mission (President's Commission on Crime in the District of 
Columbia), the Katzenbach Commission (President's Commis- 
sion on Law Enforcement and Administration of Justice), the 
Kerner Commission (National Advisory Commission on Civil Dis- 
orders), and the Eisenhower Commission (National Commission 
on the Causes and Prevention of Violence). Each had a dis- 
tinguished, bipartisan and largely non-federal membership, con- 
taining liberals and conservatives. 

Each of the three which have completed their tasks has 
seen a diverse membership combine to produce a compelling 
report and sweeping recommendations. To a remarkable degree, 
their findings and directions for the future are the same, or 
fall into a consistent pattern. At the same time, most of their 
proDosals have gone unimplemented. 

To capitalize on the work of its predecessors, and profit, 
from the lessons of inadequate follow-through, the Violence 
Commission has a notable opportunity to go beyond the writing 
of its final report and the closing of its doors. It can, if it will, 
take the initiative in creating an ongoing mechanism to pro- 
mote nationwide the kinds of criminal justice systems toward 
which it and its staff have been writing. 

Specifically, the Violence Commission should convene a session 
to which its predecessor commissions and their executive staffs 
are invited. The Brown Commission (National Commission on 
Reform of Federal Criminal Laws), whose important work on 
overhauling criminal statutes is still in process, should also be 
invited. The Violence Commission should lay before this expert 
group a proposal to establish a new national organization, per- 
haps known as the National Criminal Justice Consulting Center. 
The proposal should include the following ingredients : 

A Board of Directors composed of three representatives 



280 Report of the Task Force on Law and Law Enforcement 

from each of the Presidential Commissions, including their 
executive directors ; 

A full-time staff, with generous allowance for consult- 
ants, recruited from among staff members of each com- 
mission, staff leaders of state and local law enforcement 
planning agencies established pursuant to the Omnibus 
Crime Control and Safe Streets Act of 1968, persons with 
experience in the Law Enforcement Assistance Administra- 
tion (LEAA) and related federal agencies, and persons with 
backgrounds in the work of criminal justice institutes such 
as those pioneered in recent years by the Ford Foundation; 

Financial assistance sought from a combination of pri- 
vate and public sources, e.g., business, foundations, LEAA 
and other federal agencies ; 

Close working arrangements with national organizations 
which specialize in important parts of criminal justice 
systems reform, e.ir., International Association of Chiefs of 
Police, American Bar Association, American Corrpctional 
Association, National Council on Crime and Delinquency, Na- 
tional District Attorneys Association, National Legal Aid 
and Defender Association, American Civil Liberties Union. 

The proposed NCJCC would assist localities in working out 
the details of specific reforms which cut across the operating 
lines of criminal justice agencies. It would be a how-to-do-it 
consultant, helping cities implement reforms rather than con- 
fining itself to drafting plans. It would serve as a catalyst 
and clearinghouse, bringing innovations developed in one city 
to the attention of persons working on the same problem in 
another. It would furnish proven budgets, job descriptions, 
court rules, legislation, and operating know-how. It would 
cross-fertiH/e new approaches, aid public education whore anti- 
quated notions prevail, and offer workable answers to the per- 
sistent citizen question what can I do to help ? 

Such an organization could fill the national leadership void 
created whenever a prestigious and educated commission, which 
over time has developed consensus out of diversity, dissolves 
and disperses. 

By being private in composition, the NCJCC would avoid 
the strictures against Federal control of state programs by which 
Congress narrowed the LEAA leadership role when it enacted 
the Omnibus Crime Control Act of 1968. While NCJCC's guid- 
ance would be unofficial, the collective experience it represented 
would substantially assist those in Federal, state and local gov- 
ernment who vitally need expert support in their difficult tasks. 

As an adjunct to its consulting mission, the Center might 
also undertake national demonstrations. As local innovations 



The Nonsystem of Criminal Justice 281 

in crime control are identified, the Center on its own or with 
others could bring them to the attention of a nationwide audi- 
ence through periodic conferences. 

At least twice in recent years, through the initiative of pri- 
vate nonprofit organizations, national conferences have been 
convened to demonstrate the details of useful criminal reforms. 
In each case, a how-to-do-it approach was mounted to show 
how different communities had addressed a common problem 
and produced improvements in the criminal process. The Na- 
tional Conference on Bail and Criminal Justice was cospon- 
sored in 1964 by the Vera Institute of Justice and the U.S. 
Department of Justice. The National Defender Conference in 
1969 was undertaken by the National Dpfender Project of the 
National Legal Aid and Defender Association, with cosponsorship 
by the American and National Bar Associations, the Department 
of Justice and others. 

There are many artisans in the campaign for leadership 
and funds with which to control a national citizen effort to 
improve criminal justice. Yet no organization represents or 
could attract the reputation and experience which has evolved 
from the Presidential commissions of recent years. They pro- 
vide a resource which ought not be permitted to evaporate. 

LOCAL CITIZEN ORGANIZATIONS 

Constructive citizen action on the local level can be a power- 
ful force for criminal justice reform. There are simply too many 
important aspects of the private citizen's duty to expect local 
government to solve the crime problem by itself. 

The private role begins with each citizen responding indi- 
vidually when called: reporting crime, appearing as a witness, 
serving as a juror, hiring the ex-offender. The prevailing low 
level of performance in most of these areas is exemplified by 
the finding of the President's Commission on Law Enforce- 
ment and Administration of Justice that more than half of all 
crimes are never reported; by the widespread refusal of citi- 
zens to "become involved"; by the frequent failures of victims 
to prosecute, or to continue to show up in court despite seem- 
ingly endless court delays; and by the rampant refusal of em- 
ployers, public and private, to employ persons with criminal 
records. 

Beyond individual action the private role requires group 
participation. By and large, citizens fearful of crime are unin- 
formed about the problems of criminal justice administration. 
They are too often unread in the literature of crime commis- 
sions, uninvolved in efforts to improve the system, and over- 



282 Report of the Task Force on Law and Law Enforcement 

loaded with myths and scapegoats. All too many citizens con- 
tinue to advocate simple solutions to complex crime problems. 
Those who dig deeply almost always change their minds. 

The myths can be erased but only by firsthand involvement in 
the Drocess of reform. New York City has established a Criminal 
Justice Coordinating Council to tie private business, labor, edu- 
cation, religion and other citizen interests to public officials 
in tackling specific crime control projects. In narcotics, alco- 
holism, burglary prevention, court delay, police manpower util- 
ization, offender employment and other areas, teams of public 
and private persons aided by full-time private staff from the 
Vera Institute of Justice) work together, analyzing the facts, 
planning for change, and overseeing reform. The coordinating 
council idea is catching on elsewhere. 

Royal Oak, Mich., and Denver, Colo., have seen groups of pri- 
vate citizens develop one to one programs through which a 
private person helps a misdemeanor offender or a juvenile de- 
linquent make his way back into law abiding community life. 

Washington, B.C., has produced Bonabond, Inc. an orga- 
nization run by ex-offenders to help other ex-offenders in trouble. 

In a host of cities, local chapters of national organizations 
like the Lawyers Committee for Civil Rights Under Law, the Ur- 
ban League, the Urban Coalition, the National Council on Crime 
and Delinquency, the League of Women Voters, and the Ameri- 
can Friends Service Committee, have launched programs to im- 
prove jails and prisons, juvenile courts, offender employment, 
police recruitment and crime prevention, plan emergency jus- 
tice procedures, etc. 

As such local efforts multiply, several elements critical to 
their success or failure, and their overall impact on law and 
justice in the community, emerge: e.g. full-time staffing, ade- 
quate funding, long-term continuity, involvement in a spectrum 
of criminal justice system problems, frequent evaluation of 
progress. 

Perhaps the most successful of private organizations in at- 
tacking a broad range of crime control problems through a 
public-private partnership is New York City's Vera Institute 
of Justice. Its unique role in cooperation with the office of the 
Mayor, the police, the courts and corrections has developed 
over eight years. Its nonbureaucratic approach has permitted 
it to test new programs, through experiments and pilot proj- 
ects, in a way no public agency would likely find successful. 
Its core funding is entirely private; its individual project fi- 
nancing comes from a wide range of Federal, state and pri- 
vate sources. 

The philosophy and technique which characterize the Vera 



The Nonsystem of Criminal Justice 283 

operation have been summarized by its Director, Herbert J. 
Sturz : 

It has often been said that public institutions are in- 
herently resistent to change particularly to change pro- 
posed by a private outside organization. Vera has not found 
this to be the case in New York City. We received sup- 
port from Mayor Wagner when we began the Manhattan 
Bail Project. We have had support from Mayor Lindsay 
for our more recent projects. The agencies with which we 
have dealt have acknowledged the need for change, and 
they have been, for the most part, hospitable to new ideas 
and, to some extent, experimentation. 

Many irritants in the system arise from the lack of coor- 
dination among agencies. The principal mechanisms for 
dealing with a problem which cuts across agency lines 
the interdepartmental committee and the task force have 
been largely unsuccessful. A neutral private agency, such as 
Vera, can successfully bring together several agencies in a 
joint innovative program or experiment. Perhaps because 
we are not part of the bureaucratic machinery, we post 
little threat to existing agencies and carry with us no 
residue of past misunderstandings. Also, bringing about the 
required cooperation is our business and not an extra duty 
imposed on a crowded schedule. 

In addition, Vera can intercede with the city's power 
structure; we are not bound by chains of command. We do 
not seek reform by exposing inefficiency or injustice, by 
leveling indictments, or by public confrontation with line 
agencies. Too often, this approach hardens opposition to 
change or at best leaves the kind and quality of change 
to the agency under attack. And we have found that, al- 
though preliminary fact-finding is necessary as a prelude 
to experimentation, a study alone is seldom effective in 
bringing about change. In the criminal process Vera has 
used the pilot project to advantage. 

Small test programs can usually be mounted inexpen- 
sively; specialists can be brought in ad hoc; red tape can 
be bypassed; relatively quick results can be expected. 
Since no new agency, bureau, or division is created, a 
project can be easily dismantled if it proves ineffective, 
without disastrous results politically or financially, and 
even in failure it may provide useful information. If the 
project proves worthwhile, the city can take it on as a 
permanent fixture, and the private planning group can 
move on to a new area. 

It is my belief that this action-oriented intervention 



284 Report of the Task Force on Law and Law Enforcement 

approach, which Vera has tried with some success in New 
York City, can be useful in other cities provided that cer- 
tain conditions can be met. Among them are: (1) that fund- 
ing, at least for a core staff, be available over a two or 
three year period from the private sector (money for spe- 
cific projects can be raised from city, state and federal 
sources) ; (2) that the new institute be system-oriented 
as well as client-oriented and should quickly establish in 
the community the principle that the two are not mutually 
exclusive; (3) that the first couple of projects show visible 
results within a year; (4) that the people who run the 
institute are content to stay in the background and give 
credit to those within the system. 

The Vera experience should be tried elsewhere. The Federal 
government should join the private sources to provide the 
funds for spurring the establishment of similar institutes in 
other urban centers. A major task of the proposed NCJCC should 
be to help localities develop such private catalysts for change. 

CONCLUSION 

The mechanisms suggested here could go a long way toward 
reversing the picture of a criminal justice nonsystem falling 
apart at the seams. Money in vast sums is the other part of 
the life blood of a functioning system. The injection of federal 
funds into state crime control programs in 1968 was an im- 
portant step in the right direction. Much more money must be 
channeled, and must reach down into the cities, if action to 
reduce crime is to make a difference. Much more money must 
be injected into research, devlopment and pilot projects, if the 
outdated techniques of yesterday are to be converted into an 
effective criminal process tomorrow. 

The Law Enforcement Assistance Administration is doing 
a commendable job under adverse circumstances. Congress has 
appropriated less money than is needed for grants and staffing; 
has Driven only a drop in the bucket for LEAA's vital National 
Institute of Law Enforcement and Criminal Justice; and has 
beset the entire program with restrictions which make prog- 
ress difficult. 

Until these impediments are remedied, and until staffed or- 
ganizations public and private are developed to assure wise 
investment and monitoring of new funds, crime control will 
continue to be a high priority campaign fought with bold words 
but no system. 



CHAPTER 14 
THE POLICE AND THEIR PROBLEMS* 



In society's day-to-day efforts to protect its citizens 
from the suffering, fear, and property loss produced by 
crime and the threat of crime, the policeman occupies 
the front line. It is he who directly confronts criminal 
situations, and it is to him that the public looks for 
personal safety. The freedom of Americans to walk 
their streets and be secure in their homes in fact, to 
do what they want when they want depends to a great 
extent on their policemen. 1 

There is little question that during the past decade of turbu- 
lent social change, our nation's policemen have not been able to 
escape from the front lines. More than that, they are called upon 
to fight against one side one day and then for it the next day. 
The same policeman who on a Wednesday is mobilized to help 
control a blazing ghetto riot and arrest throngs of looters may 
'by week's end find himself assigned to keep traffic clear from 
the parade route being followed by hundreds of blacks conduct- 
ing an anti-poverty march. 

In fact, the very same policeman may on a Saturday rescue 
a hippie college student victimized by a gang of motorcyclists, 
and by the next Monday be summoned to the campus to assist 
university officials in re-capturing a building held by stone- 
throwing, epithet-screaming student dissidents. The same police- 
man in the morning may be called "soft and ineffective" by our 



* This chapter was prepared by David P. Stang and is based in part 
on research contributions by Professor Alfred Blumstein, Director, Urban 
Systems Institute, School of Urban and Public Affairs Carnegie-Mellon 
University, Pittsburgh, Pa.; Prof. Samuel Chapman, Department of Po- 
litical Science, University of Oklahoma; Prof. A. C. Germann, Department 
of Criminology, California State College, Long Beach, Calif.; Capt. John 
J. Guidici, Oakland Police Department, Oakland, Calif.; George W. 
O'Connor, Director, Professionals Standards Division, Inter national Asso- 
ciation of Chiefs of Police, Washington, D.C.; Prof. Irving Piliavin, 
School of Social Work, University of Pennsylvania; and Donal Mac- 
Namara, of Jo^n Jay College, New York City. Interviewing with police 
officers of all levels, from chiefs to patrolmen, was also conducted. 

285 



286 Report of the Task Force on Law and Law Enforcement 

"forgotten man" and "fascist pig" by a young revolutionary in 
the afternoon. How our nation's police are able to fulfill such 
drastically conflicting roles without lapsing into an anomic 
stupor 2 is perhaps the best measure of the degree to which the 
policeman is in fact a professional. 

What is the policeman's job? Who and what is he supposed 
to protect? How can he most effectively execute his responsi- 
bilities? What are his problems and how can these problems 
be solved? These are the questions we address in this chapter. 

DUTIES OF THE POLICE 

Police responsibilities fall into three broad categories. 3 First, 
they are called upon to "keep the peace." This peacekeeping duty 
is a broad and most important mandate which involves the pro- 
tection of lives and rights ranging from handling street corner 
brawls to the settlement of violent family disputes. In a word, 
it means maintaining public safety. 

Secondly, the police have a duty to provide services which 
range from bestowing menial courtesies to the protection of 
public and private property. This responsibility is the one that 
many police officers complain about the most but, nevertheless, 
are called upon to perform the most frequently. In fulfilling 
these obligations, a policeman "recovers stolen property, directs 
traffic, provides emergency medical aid, gets cats out of trees, 
checks on the homes of families on vacation, and helps little 
old ladies who have locked themselves out of their apartments." 4 

The third major police responsibility, which many policemen 
and a considerable segment of the public feel should be the 
exclusive police responsibility, is that of combating crime by 
enforcing the rule of law. Execution of this task involves what 
is called police operations and this ranges from preparing 
stakeouts to arresting suspects. 

That policemen have difficulty assigning priorities to these 
sometimes conflicting responsibilities is one major operating 
limitation the police have recently had to endure. 5 There are, 
however, other important limitations imposed on the police to 
which we shall briefly refer before returning to the crucial 
subject of conflicting police roles. 

Among these, special attention must be given to manpower 
deficiencies, inadequate financing, and frictions with courts and 
other governmental agencies. 

MANPOWER LIMITATIONS 

According to the President's Crime Commission, there are 
approximately 420,000 policemen in the United States today. 6 



The Police and Their Problems 287 

Yet most police departments are under-manned, thus spreading 

the existing complement of police personnel much too thin. This 
manpower supply has been further depleted by more generous 
holiday, vacation and sick-leave policies, reduced weekly work- 
hours, increased specialization, continued use of police personnel 
to perform a heavier burden of clerical, technical and service 
activities more suitable for civilian employees. 7 The manpower 
problem is further exacerbated by difficulties in recruiting, espe- 
cially recruitment among minority groups; resignations of 
experienced police officers; early retirements; overly rigid 
restrictions on manpower distribution and assignment; and the 
dissipation of police-man-hours in nonproductive or minimally 
productive activity. This latter category involves, in part, hours 
spent waiting to be called as a witness, writing out multiple 
copies of reports, assignment to fixed posts of questionable 
utility, being forced to provide special escort services, and other 
irritating and time consuming chores. Nor is the available man- 
power scientifically allocated either in terms of ratios of police 
to population (which range from fewer than 1:1000 to more 
than 4:1000) or in terms of crime incidence, traffic volume, calls 
for police services or other meaningful indices of demands for 
more effective policing. 

This inadequacy is magnified by reports that newly recruited 
officers are less well-educated than veteran officers, 8 that they 
are being assigned to full police patrol duty without completing 
the prescribed training; 9 that morale is low and supervision 
lax; 10 and that advanced in-service and refresher training to 
keep them abreast of legal, social, and technological changes is 
inadequate. 11 

FINANCIAL LIMITATIONS 

In 1968, in the most affluent nation in world history, our 
total expenditures for police (Federal, state, and local, includ- 
ing sheriffs and such ad hoc police agencies as the New York 
City Transit Police, Port of New York Authority Police, park 
police, Capitol Police, and other full-time enforcement person- 
nel) approximated $3 billion. Most commentators consider this 
amount inadequate in light of current recruitment problems, 
resignations, early retirement difficulties, and widespread police 
"moonlighting" with its negative effects on police alertness and 
departmental sick-leave rates. 

Inadequate police budgets, too, have made it difficult or 
impossible in many jurisdictions to construct needed modern 
headquarters facilities, to provide decentralized substations in 
areas of demonstrated need, to modernize communications sys- 
tems, to install improved traffic control devices, to acquire com- 



288 Report of the Task Force on Law and Law Enforcement 

puters and other advanced management and operations control 
"hardware," to finance pilot projects and demonstrations and 
to recruit at highly-paid specialist levels the qualified personnel, 
all of which are essential to the implementation of the recom- 
mendations of the President's Commission on Law Enforcement 
and Administration of Justice and of the National Advisory 
Commission on Civil Disorders. 

Police costs in the United States have been traditionally a 
local burden ... a burden which many local jurisdictions are 
no longer able to support if fully effective law enforcement is 
to be achieved. Certainly the funds now being provided by Con- 
gress through the Law Enforcement Assistance Administration 
of the Department of Justice to support police planning, train- 
ing, and research will prove of some assistance in easing the 
budgetary limitations under which many law enforcement units 
are presently operating. 

POLICE CONFLICTS WITH OTHER 
CRIMINAL JUSTICE AGENCIES 

The police establishment is only one of the agencies con- 
stituting the criminal justice system. By the very nature of the 
criminal justice system, the police are required to cooperate with 
the other agencies, including the prosecutors, the courts, the 
jails and correctional institutions. In many locations, however, 
there is neither formal nor informal machinery for cross-pro- 
fessional dialogue between the police and the representatives of 
the other agencies involved in criminal justice administration 
or policy-making, so that minor irritations and misunderstand- 
ings often cumulate into major bureaucratic conflicts. The 
failure to involve the courts, prosecutors, and corrections officials 
in the training of police, the failure to involve police in the 
orientation of newly-chosen judges and prosecutors and in the 
training curricula for newly appointed probation and parole 
officers, and the even more general failure to consult police in 
the planning stages of executive and legislative decision-making 
in areas which may directly or indirectly affect their responsi- 
bilities or operations all further compound this already difficult 
situation. 

In recent years the courts in particular have become more 
and more the target of severe police criticism. Police problems 
involving the courts arise at three levels: (1) Procedural 
requirements which result in the loss of many hundreds of 
thousands of police man-hours annually because of inefficient 
or uncooperative court administration and resistance to changes 
in traditional practices (e.g., central booking, computerized 
dockets, the impanelling of additional grand juries, and such 
apparently simple courtesies as moving cases involving police 



The Police and Their Problems 289 

witnesses to the top of the calendar or the taking of police 
testimony in pre-trial proceedings) ; 12 (2) allegedly improper 
dispositions of cases both at preliminary hearings and arraign- 
ments and after trial (e.g., dismissal of charges and release of 
persons arrested for serious crimes, speedy setting of low bail 
or release on personal recognizance of offenders police believe 
dangerous and likely to commit additional crimes or granting 
probation to dangerous and persistent offenders where proba- 
tion supervision is inadequate) ; and (3) constitutional limita- 
tions on police tactics and procedures both in general law 
enforcement and specifically in the area of criminal investiga- 
tion (e.g., the decisions of the Supreme Court which have forced 
the police to be more careful in the conduct of searches and 
seizures, and in warning suspects of their constitutional rights 
against compulsory self-incrimination) . 

The question of court-imposed constitutional limitations on 
police practices is especially sensitive. Whether these restric- 
tions on traditional police practices have actually reduced police 
effectiveness is a matter of some controversy even among police 
and prosecutors; but a significant consensus among police officers 
of all ranks in every part of the country interprets these deci- 
sions as favoring the criminal and as deliberately and perversely 
hampering, indeed punishing, the police. 

One police spokesman has stated: 

It would appear that the primary purpose of the police 
establishment has been overlooked in the tendency of our 
courts and the other officers of the judicial process to free 
the most heinous of criminals because of legalistic errors 
by law enforcement officers. ... To allow criminals to go 
free because of legalistic error turns our judicial process 
into a game and makes mockery of our supposedly sophis- 
ticated society. . . . From the police standpoint, one of the 
very real dangers is that decisions from the courts are breed- 
ing indecision and uncertainty in the individual police 
officer. The inevitable result is that the policeman's duty 
has become so diffused that it is difficult for him to carry 
out his responsibilities. 13 

Another observer stated even more dramatically that, "The 
Courts must not terrorize peace officers by putting them in fear 
of violating the law themselves." 14 Views of this kind are set 
forth repeatedly in articles and comments in such respected 
police professional periodicals as The Police Chief, Law and 
Order and Police. 

Police in general also have little confidence in the ability of 
jails and prisons to reform or rehabilitate convicted offenders. 
This is not surprising, of course, for this view is shared, if 



290 Report of the Task Force on Law ana Law Enforcement 

perhaps for different reasons, by the great majority of American 
criminologists and even by residents of our so-called "correctional 
system." This lack of confidence in institutional rehabilitation 
programs underlies the strong police opposition to the parole 
system and the somewhat less aggressive opposition to work 
release, school release, and prisoner furlough programs, open 
institutions, and halfway houses. There is a rather generalized 
feeling among large segments of the police that potentially 
dangerous offenders are released far too often on low bail, or 
their own recognizance or following conviction far too soon by 
parole boards; that these paroled offenders are frequently 
inadequately supervised by unqualified parole officers with exces- 
sive case-load responsibilities; and that they commit new and 
serious crimes thus adding additional burdens of investigation 
and apprehension to already overburdened police agencies. 

Police in some jurisdictions have encountered difficulties in 
their relationships with the executive and legislative branches 
of government. These difficulties range from the irritation of 
requests for special treatment for favored traffic offenders and 
detail of police personnel to jobs as chauffeur and doorman in 
the Mayor's office to outside interference in internal personnel 
matters such as assignments and promotions and in general 
policy matters such as enforcement strategies and operational 
tactics. 

Legislatures too have been criticized by police for failure to 
appropriate sufficient funds to provide adequate law enforce- 
ment for repeated investigations and inquiries which contribute 
to a negative police image; for penal law and criminal procedure 
changes which reduce penalties, make parole easier, or impose 
new restrictions on police efforts; and for failure to protect the 
police from changes in their working conditions which police 
feel deleterious to their welfare. 16 

POLICE ROLE CONFLICTS 

As we stated earlier, perhaps the most important source of 
police frustration, and the most severe limitation under which 
they operate, is the conflicting roles and demands involved in 
the order maintenance, community service, and crime-fighting 
responsibilities of the police. Here both the individual police 
officer and the police community as a whole find not only incon- 
sistent public expectations and public reactions, but also inner 
conflict growing out of the interaction of the policeman's values, 
customs, and traditions with his intimate experience with the 
criminal element of the population. The policeman lives on the 
grinding edge of social conflict, without a well-defined, well- 
understood notion of what he is supposed to be doing there. 

Police involvement in order maintenance situations such as 



The Police and Their Problems 291 

family disputes, tavern brawls, disorderly teenagers loitering 
in the streets, quarrels between neighbors, and the like inevitably 
produces role conflict. One party is likely to feel harassed, out- 
raged or neglected. The police officer quite frequently has no 
clear legal standard to apply or one that, if applied, would 
produce an obviously unjust result. 17 The victim is often as 
blameworthy as the perpetrator, often the parties really want 
him only to "do something" that will "settle things" rather than 
make an arrest. Should an arrest be demanded, he is in many 
jurisdictions foreclosed from complying since the misdemeanor 
complained of was not committed in his presence, and the 
vociferously complaining victim or witness is unwilling to sign 
a complaint. 18 Thus, he must devise a solution based almost 
entirely on his own discretion and judgement. 19 

Oftentimes the policeman is forced to arrest persons for viola- 
tions of laws he does not believe are fair. But more often, he 
sees the fear and the pain and the damage that crime causes, 
and he feels that criminals are getting away with too much. 
This frustration mounts each time he arrives at the scene of a 
recently-reported crime to discover the offender has escaped. 
He finds justification for his contempt for the "criminal element" 
when he reads of public approval of night-stick justice tech- 
niques. 20 

Police in the United States are for the most part white, 
upwardly mobile lower middle-class, conservative in ideology 
and resistant to change. In most areas of the country, even 
where segregation has been legally eliminated for long periods, 
they are likely to have grown up without any significant contact 
with minority and lower socioeconomic class life styles and 
certainly with little or no experience of the realities of ghetto 
life. They tend to share the attitudes, biases and prejudices of 
the larger community, among which is likely to be a fear and 
distrust of Negroes and other minority groups. 

Appointed to the police force and brought into day-to-day 
contact with what is to him an alien way of life, the young 
police officer experiences what behavioral scientists refer to as 
"cultural shock." His latent negative attitudes are reinforced 
by the aggressive and militant hostility which greets him even 
when he is attempting to perform, to the best of his ability, a 
community service or order maintenance function, or is attempt- 
ing to apprehend a criminal whose victim has been a member 
of the minority community. 

Negative responses to minorities and to non-conforming 
groups such as "hippies," campus militants, antiwar demonstra- 
tors, and the new breed of "revolutionaries," are also reinforced 
by the socialization process which transforms the new recruit 
into a member of the police community. Not only during the 



292 Report of the Task Force on Law and Law Enforcement 

formal training process but in the everyday contacts with his 
fellow officers and his participation with them in both on-duty 
activity and off-duty socializing tend to mutually reinforce the 
police ideology, the closed-ranks defensiveness, which separates 
"we" who are on the side of law, order, morality and right from 
"they" who are immoral, criminal, delinquent, idle, lazy, dirty, 
shiftless or different. 

Efforts to bridge the gap between the police and some seg- 
ments of the community have proved only minimally success- 
ful. 21 The realities of police confrontation with these "undesir- 
able elements," whether on occasions of episodic violence or, 
more importantly, when a police officer is killed or seriously 
injured as a result of minority group militance, tend to offset 
the gains made by efforts directed toward improving police 
attitudes and police-community relationships. 

POLICE INEFFECTIVENESS 

The cumulative result of the many limitations and frustra- 
tions described above is an evident inability of the police, as 
presently organized, manned, financed, equipped and led, to 
meet effectively all of the demands and expectations placed on 
them by the public. These inadequacies are evidenced in their 
inability to prevent crime, their declining record in solving 
crimes known to them; their sluggish response to and 
indifferent investigation of all but major crimes or those involv- 
ing important persons, businesses, or institutions. 22 Particularly 
evident is an inability to deal effectively with crime in minority- 
populated ghettoes for reasons which involve minority group 
attitudes and noncooperation as importantly as police attitudes, 
facilities and efficiency. 

Various analyses of police confrontations with minority and 
protest groups have identified 'over-response/ inadequate crowd 
control training, poor planning, failures in supervision and 
leadership, as well as the residual hostility of the police to the 
minorities and nonconformists involved, their suspicion of dis- 
sent, and their disagreement with the demonstrators on the 
substantive issues as causative factors. 23 Nor have these analyses 
neglected to underline the difficult conditions to which the police 
have been subjected: the provocations, verbal and physical, to 
which they were subjected by participants in demonstrations; 24 
and at least in some instances the distorted or at least unbal- 
anced coverage by news media. 25 That at least some participants 
in many of these conflict episodes wanted to provoke a police 
over-response may be true but that individual police officers, 
and sometimes apparently whole police units, cooperated enthu- 
siastically with their plans is equally obvious. 26 



The Police and Their Problems 293 

That the police and major elements of the public are becoming 
more polarized is well established. 27 This polarization is inten- 
sified by police frustrations growing out of what they perceive 
as the public's unreasonable expectations of them and even more 
unreasonable limitations imposed on them, the growing militancy 
of minority and dissident groups, their strategy of confronta- 
tion, and the vicious cycle of police overresponse. These factors 
often are aggravated by new and highly publicized charges of 
police brutality and derogatory attitudes toward minority 
groups, which attract new sympathizers from previously mod- 
erate or non-activist segments of the population and often tend 
to encrurage reactive ghetto counter-violence. 

POLICE POLITICIZATION 

Recently, the police have begun to realize that acting exclu- 
sively as individuals in attempting to deal with their role, con- 
flicts, frustrations and limitations has failed to pay dividends. 
Thus, as is the case with other newly self -aware special interest 
groups in our society, the police have begun to enter active 
politics on a much larger scale. 

Police participation in the political process in America has 
traditionally been limited and local: limited to securing favor- 
able legislation as to pensions, working conditions and pay 
rates, 28 with occasional lobbying for or against proposals to 
abolish the death penalty, legalize gambling, or raise the age 
of juvenile court jurisdiction and local in the sense that it 
invariably involved approaches by the locally organized police 
to municipal authorities or at most to the state legislator repre- 
senting the district. Occasionally charges would be made of more 
active police involvement in local campaigns, but there was a 
consensus even among the police that they, like the military, 
should abstain from active, overt participation in politics. Vari- 
ous police departments incorporated in their police regulations 
stringent rules prohibiting political activity other than voting. 

In the past decade, largely as a result of efforts to raise police 
pay scales to a parity with those of skilled workmen, more 
militant police associations some trade-union affiliated, others 
in loose state and national affiliations escalated their pressure 
tactics so that job action, "blue-flu," and even threatened 
police strikes became common-place in police-municipality salary 
disputes. 29 

The major impetus to police politicization, however, was with- 
out doubt the attempt to impose a civilian review apparatus to 
adjudicate complaints against police officers by aggrieved citi- 
zens and attempts of citizen groups to restrict police use of 
firearms. 30 The proposals for civilian review boards were fought 



294 Report of the Task Force on Law and Law Enforcement 

in the communications media, in the courts, in the legislature, 
and finally in a popular referendum in New York City in which 
the police won a resounding victory after a campaign which did 
much to further polarize the dissident minorities. 31 The victory 32 
convinced many in the police community of the desirability of 
abandoning the internecine battles which had divided them and 
reduced their political effectiveness in the past. 

The future of expanded police participation in politics is not 
entirely clear at present. Certainly there has been important 
police support for conservative, even radical right, candidates 
in recent national and local elections, and there are signs that 
police officials are finding increasing opportunities as success- 
ful political candidates. 

But the police have not had an unbroken - record of political 
successes. In the 1969 legislative session in Albany, a bill abol- 
ishing the fifty-eight year old three-platoon system passed by 
a near unanimous vote, despite strong opposition by the united 
police pressure groups. Whether activities such as aroused 
police officers seeking the removal of a judge in Detroit, or 
an equally aggressive organization (the Law Enforcement group 
in New York City) seeking to monitor the conduct of judges 
and their case dispositions, will be widely and successfully 
imitated cannot be predicted at this time. 33 

What is clear, however, is that a politicized police force united 
and well financed and perhaps closely allied to conservative 
political and social forces in the community poses a problem 
for those interested in preserving internal democracy and insur- 
ing domestic tranquility. As the only lawfully armed force within 
the community, and possessed by the nature of their duties and 
responsibilities of unique authority and powers over their fellow 
citizens (including access to derogatory information, potential 
for discriminatory enforcement of the laws against their oppo- 
nents, licensing and inspection functions) , the united incursion 
of the police into active politics must be regarded with some 
trepidation. 

More and more, the police community perceives itself as a 
minority group, disadvantaged and discriminated against, sur- 
rounded by, servicing, and protecting a public, which is at 
best apathetic or unaware of the frustrations and limitations 
imposed on the police; and at worst, unsympathetic or hostile. 
The dynamics of this self-perception, assuming a continuation 
or possible escalation of the external aggravants (verbal and 
physical abuse of the police; more stringent judicial and legisla- 
tive restrictions; budgetary difficulties), involve reinforced 
defensive group solidarity, intensified feelings of alienation and 
polarization, and a magnified and increasingly aggressive mili- 
tancy in reaction and response to those individuals, groups and 



The Police and Their Problems 295 

institutions (social and governmental) perceived as inimical 
an action-reaction pattern which, unfortunately, will inevitably 
be replicated within the aggrieved and dissident communities. 

SOME SUGGESTED SOLUTIONS 

There are two areas of police-public confrontations in which 
changes in police policy and practice can lead to a reduction of 
friction and restoration of public respect for the police which 
the police themselves feel to be so sorely lacking. The first 
involves highly visible police relationships with the public, often 
involving the combined presence of great numbers of police and 
the public at the same time and place. The second is the less 
visible contact of the police with the public and usually involves 
ordinary relationships between individual police officers and 
individual members of the public. 

THE POLICE AND POLITICAL VIOLENCE 

The police often believe that ideological and political conflicts 
like the Chicago convention demonstrations involve clashes 
between good, upright and honest groups of citizens on the one 
hand and bad, lawless and deceitful troublemakers on the other. 
In fact, however, these great struggles between large groups 
of the public more clearly involve political difference than they 
do questions of criminal behavior. Often the "good, upright and 
honest" citizens are better characterized simply as conservative 
elements of the population who are resisting the demands of 
other factions seeking social, political, or economic benefits at 
the direct expense of the conservative groups. 

Unfortunately, these conflicts involving demonstrations, mass 
protests, and strikes by the dissidents often involve violence 
and the call-up of the police for front-line duty. The police, 
instead of taking a neutral position in attempting to restore 
order during these primarily political clashes, often tend to 
become participants in the clash on the side of the conservative 
elements and against the dissident elements. 34 The dissidents 
quickly recognize the active participation of the police in siding 
with the "enemy" and then begin to concentrate their attacks, 
both verbal and physical, more directly on the police than on 
the groups whose interests the police are supposedly protecting. 
The cycle becomes vicious and the ultimate loser is always the 
police. 

This recurring phenomenon has been discussed quite exten- 
sively in the Task Force report on Violence in America: His- 
torical and Comparative Perspectives. Thus, we refer only for 
example to the conservative-reformist clashes, entailing the 



296 Report of the Task Force on Law and Law Enforcement 

victimization of the police, between management and labor of 
the 1930's; between the landowners and the migrant farm 
workers in California of the late 1930's and early 1940's; 
between the small town or rural white Southern population and 
the civil rights workers and Southern blacks of the early 1960's; 
between the urban governments, employers, landlords, and busi- 
ness establishments and the anti-poverty and black power advo- 
cates of the middle to late 1960's. On each of these battlefields 
some of the police have unnecessarily taken sides and have be- 
come the target of violence. 

In Rights In Concord, this Task Force's investigative report 
on the Washington counter-inaugural demonstration, we have 
shown that when the police, through disciplined supervision, 
refrain from taking sides and steadfastly remain neutral in the 
face of a political demonstration that is perhaps distasteful to 
most of them personally, physicial injuries and the destruction 
of property are minimized and the police emerge as widely 
respected umpires and peace-keepers. Thus, with respect to politi- 
cal differences between elements of the population in these 
socially troubled times, police leadership must decline invitations 
to take sides and to refrain from engaging in unnecessary fights. 
Only in this way can the police surely reemerge as the respected 
keepers of the peace the principle duty of their worthy pro- 
fession. 35 

THE PATROLMAN AND THE PEOPLE 

The second area of police-public confrontation in which there 
has been a loss of respect for the police is the routine day-to-day 
encounters between individual police officers and members of 
minority groups. These encounters form the crux of what is 
commonly referred to as the "police-community relations prob- 
lem." The problem manifests itself particularly in the inner city. 

The crowded center city is where crime rates are the 
highest, where the black minority has experienced the 
catharsis of bloody, blazing riots, and is now struggling 
to develop a new and proud identity. The people no longer 
doubt that they are entitled to be treated with respect and 
dignity, and often militantly demand it. They are aspiring 
for the social and material benefits that they have been so 
long without. Hopes are high, but the results have not yet 
begun to materialize substantially. Houses and apartments 
are still over-crowded, too cold in the winter, and unbear- 
ably hot in the summer. Homes still are often without 
fathers. Mothers still are searching for the where-withal 
to purchase the next meal. Children of all ages are out on 
the street and in the alleys. 



The Police and Their Problems 297 

They see the very visible white man who, for years, has 
owned the corner grocery stores. He still tells them to get 
out if they are not going to buy anything. But he's scared 
of them now and they know it. So they goad him, throw 
his merchandise around and sometimes steal it if they think 
they can do so without getting caught. The grocer calls 
the police. 

The police arrive in a radio-dispatched squad car with 
red lights flashing. The young candy thieves have made a 
clean getaway. Their friends, however, are still on the 
street. The policemen talk with the grocer then return to 
the street to question the kids. The kids are amused and 
enjoy the excitement. "No," they did not see anybody leave 
the store. The policemen know otherwise and in frustration 
they ask, "What are you kids doing here?" "Nothing," is 
the answer. "Then you better move on or we're gonna lock 
you up," the kids are told. Reluctantly they make feeble 
efforts to obey. The police get back into their squad car 
and start to drive off. Ten seconds later they hear the 
kids' jeers and laughter. 

Night falls. More of the older kids are now seen on the 
street corners "shucking and jiving." Some bounce basket- 
balls. Some listen to portable radios. Others dance or feign 
boxing matches. 

In the homes the fights begin. Sometimes it is between 
man and woman; sometimes between teenage child and an 
aunt or grandmother. The police are called again. The 
people on the street watch as the squad car arrives. The 
police go inside; they hear shouting. The accusations begin. 
The police explain that in order for them to arrest anybody, 
the complainant is going to have to go down to the D.A.'s 
office and sign a complaint. "Just lock the 'so an so' up," 
is the response. The police do the best they can to quiet 
things down, then leave. Nobody is satisfied. As the squad 
car pulls away from the curb, the kids jeer again. 

Later in the evening the same policemen see a loud street 
corner disturbance involving about a dozen young men. The 
policemen are now a little more weary. In another half hour 
their tour will be finished. 

They get out of the car and ask, "What's going on ?" Two 
of the young men continue to swing at one another. 
"Alright, break it up !", a policeman orders. One of the two 
stops swinging. The other, apparently intoxicated, continues 
to brawl. The policemen get gruff. "I said, 'knock it off'!," 
barks the policeman. The young fighter utters a profane 
epithet followed by, "Honky cop." More people gather 
around. 



298 Report of the Task Force on Law and Law Enforcement 

One of the policemen responds, "Buddy, you're coming 
down to the stationhouse. We're gonna lock you up." The 
policemen reach for his arms. He kicks, swings his fists, 
and continues to yell "Honky cop!" The two policemen 
slam him up against the squad car, handcuff him, pat him 
down and shove him into the back seat. The crowd is 
sullen. Fists are clenched and teeth are gritted. One of 
the policemen says, "Move on. We don't want any more 
trouble out of you people tonight." The policemen get back 
into the squad car and drive off. The still undispersed 
crowd mutters words of hatred. 

These are ordinary events in the average day of a policeman 
assigned a squad car beat in the center city. There is no love 
lost between the police and the center city residents. The resi- 
dents, whether they be black, Puerto Rican, Mexican, of any 
other minority group, or just plain hippies, see the police 
as bullies, unfair, stupid, rude, and brutal a symbol of 
"Whitey's power." The police, in turn, see the minority groups 
as hostile, dirty, lazy, undisciplined, dishonest, immoral, and 
worst of all, disrespectful of the "badge" they try to represent. 

"In the old days," the police say, "colored people would 
move on if you told them to. Now they don't. They just 
give you a bunch of crap." 

On a wooden fence in the center city there are new epi- 
grams scrawled in crayon. They read 'Black Power!," "Say 
it now and say it loud I am black and I am proud !," "Kill 
a pig." 

IMPROVING POLICE-COMMUNITY RELATIONS 

The police are, indeed, prejudiced against minorities. And the 
minority groups are equally prejudiced against the police. The 
prejudice on both sides is not without some foundation. The 
views of each side toward the other are constantly being rein- 
forced and have become self-fulfilling prophesies. Doing some- 
thing about this problem is what is called "improving police- 
community relations." 

The need to improve police-community relations has existed 
and been recognized for decades. Local, state and federal com- 
missions have written hundreds of pages about it. Police experts 
and academics have written books about it. 36 Public officials, 
including police chiefs, have made speeches about it. Civil rights, 
leaders have conducted demonstrations concerning it. All agree 
that something should be done. Recommendations have been 
made by the score. The most frequently made suggestions many 
of them worthwhile include : 



The Police and Their Problems 299 

Extending human-relations training of recruits and offi- 
cers; 

Creating or enlarging police-community relations units 
within police departments; 

Starting precinct and city-wide citizen advisory commit- 
tees, including minority leaders, to meet with the police; 

Developing programs to educate the public about the 
police, such as visits of school children to precinct stations, 
lectures by police officers to adults or youth groups, and 
school courses concerning police work; 

Running recruitment campaigns aimed at members of 
minority groups; 

Ending discrimination within police departments, such 
as that relating to promotions, and integration of patrols; 

Issuing orders banning use of abusive words or excessive 
force by police officers; and 

Developing procedures to handle citizen complaints within 
the police department which are fair and designed to impose 
real discipline. 37 

Other recommendations have included the suggestion that 
the police be disarmed or at least that each police department 
adopt a strict firearms use policy. 38 Some have suggested that 
the police discontinue wearing military-type uniforms and 
instead don more friendly working garb, such as blazers and 
slacks. 39 Still others have encouraged the adoption of psycho- 
logical pre- and post-recruitment tests designed to identify for 
"weeding-out" purposes the bullies and misfits. More extreme 
suggestions have been made to the effect that all the "bully 
cops" be fired or retired and that college graduate, social science 
majors be hired to replace them. Some have suggested either 
neighborhood control of the police, or that neighborhoods desir- 
ing it police themselves and that regular policemen not be per- 
mitted to enter such areas. 40 

Although some of these ideas have been adopted by some 
police departments in whole, or in part, in even the most pro- 
gressive police departments the problem of police-community 
relations remains a sore spot. The reason is that most of the 
efforts at improving police-community relations have been 
undertaken merely as "programs," minor changes in the police 
department's organizational structure, or as public relations 
efforts. 

To produce effective results, efforts at improving police-com- 
munity relations require modification of the underlying context 
of attitudes stemming from the everyday contacts between the 
policeman on the beat and the people he normally deals with. 
The individual patrolman must recognize that for some time to 



300 Report of the Task Force on Law and Law Enforcement 

come he will be viewed by members of the center city community 
not as an individual but as an oppressive symbol of the dominant 
white society. Of course, no community believes that "all cops 
are bad," and when a police officer treats people with consistent 
fairness, he will tend to gain a reputation for being "a good 
cop." But the depth of hostility between the police and the 
ghetto resident means that the policeman will have to persist in 
his efforts to be "a good cop" without any significant rewards 
in terms of appreciation from the community he serves. 

On the other hand, the inner-city community, and particularly 
its leaders, must recognize that policemen cannot be converted 
into social workers who operate on the assumption that felons 
are morally innocent products of a criminogenic environment. 
More importantly, members of the center city community must 
recognize not only the inevitability, but the desirability, of the 
policeman's primary identity as a member of the "thin blue 
line." A policeman's over identity with the community and a 
non-identity with "the force" tends to destroy a policeman's 
effectiveness both in the eyes of the community, and of his 
peers and superiors on the force. Just as members of the 
military think of themselves as "the military" as opposed to 
"the civilians," police officers, too, will continue to think of 
themselves primarily as policemen. Thus, instead of attempting 
to destroy this "we-they" identity it should, be capitalized upon 
and used to maximum advantage. 

It is true that the 'we-they" identity of the police 'has unde- 
sirable aspects to it, especially an apparent need to be tougher 
than 'they.' It is also true, however, that this toughness, or at 
least a confidence in a superior toughness, lies at the very foun- 
dation of a policeman's ability to arrest a violently resisting 
suspect who is 6 inches taller and 75 pounds heavier than he, 
or to calm an unruly group of aggressive teenagers. The prob- 
lem is how to shape the "we-they" identity so that the end result 
will not lessen the policeman's ability to apprehend criminals 
and maintain order, yet at the same time not destroy the police- 
man's desire or ability to interact on a humane, civil basis with 
the community. 

We do not accept the views of some critics that the problem 
is a dilemma, the solution to which is impossible without chang- 
ing the very nature of the policeman's role. Scores of interviews 
with the police themselves have convinced us otherwise (although 
we do believe that the present service-providing function of the 
police can be shifted in part to civilians and citizen auxiliaries). 

When we asked various policemen what they thought the 
main advantage was in being police officers as contrasted to 
most other occupations, most replied, first, that it was the 
superior ability to understand people and how they behave that 



The Police and Their Problems 301 

was afforded them by constant exposure to all segments of the 
public. Secondly, the majority answered that it was the ability 
to "keep a cool head" under stress, danger, and provocation. A 
black policeman, asked why he decided to become a police 
officer, gave us this answer: 

Man, when I was a little kid I thought cops were God. 
I lived in the ghetto and I saw drunks, addicts, cuttings, 
shooting, and husbands hitting wives and kids fighting on 
street corners and other bad scenes everyday. 

Somebody always called the police. The police arrived 
in the middle of the hassle and were always cool and always 
got on top of the problem fast. If they could break it up 
by quiet mouthing it they would. If they had to bust some- 
body they did it quick and were gone. Whatever it was, 
they arrived on the scene, got with it fast, stopped the 
trouble and split always with a cool head. I figured that 
was smooth and so I decided when I was a kid I wanted 
to be a policeman and do the same thing. 41 

Understanding and coolheadedness these qualities represent 
the very essence of a "good cop." These are the traits most 
required by the patrolman in the performance of his peace- 
keeping function. If these two qualities can be developed in 
more of our policemen, it will do much to alleviate tensions 
between the police and the community. 

The breeding ground of community resentment of the police 
is principally at the patrolman level, not at the command level. 
When patrolmen fail to show understanding, i.e., act insensi- 
tively, and fail to maintain coolheadedness, i.e., loose control 
and act intemperately, the community becomes incensed. The 
state of police-community relations is basically the result of 
everyday contacts of the community with the patrolmen, not 
the chiefs. The problem of police-community relations is thus 
one of ascertaining how to encourage understanding and dis- 
courage insensitivity in the patrolman, how to encourage cool- 
headedness and discourage losing control or "blowing one's 
cool." 

The yardstick for testing the application of a mature, sensi- 
tive understanding and coolheadedness is often (once deciding 
that intervention is necessary) 42 how quickly and quietly a 
patrolman can restore calm without having to make an arrest. 
This is what 'good cops' are made of. This is what constitutes 
"good police work." This is what breeds community respect for 
the police. 

One of the major problems with the present system of policing 
is that of convincing patrolmen that when they perform their 
peacekeeping duties well, they are rendering a service no less 



302 Report of the Task Force on Law and Law Enforcement 

valuable to the community than when they perform their law- 
enforcement function. Presently the rewards to a patrolman 
who is an effective peace-keeper at best, are slight. His promo- 
tion in rank is seldom the result of a good record at peace- 
keeping. This situation should be changed and greater recogni- 
tion accorded to the effective peace-keeper as well as to the 
effective crime-fighter. (Properly trained sergeants and lieu- 
tenants who demand compliance with departmental policy can 
also ensure remarkable results.) 
As Professor Wilson has noted: 

The central problem of the patrolman, and thus the 
police, is to maintain order and to reduce, to the limited 
extent possible, the opportunities for crime." 43 

A police department that places order maintenance upper- 
most in its priorities will judge patrolmen ... by their 
ability to keep the peace on their beat. This will require, 
in turn, that sergeants and other supervisory personnel 
concern themselves more with how the patrolmen function 
in family fights, teenage disturbances, street corner brawls, 
and civil disorders, and less with how well they take 
reports at the scene of burglary or how many traffic tickets 
they issue during a tour of duty. Order maintenance also 
requires that the police have available a wider range of 
options for handling disorder than is afforded by the choice 
between making an arrest and doing nothing. Detoxification 
centers should be available as an alternative to jail for 
drunks. Family-service units should be formed which can 
immediately assist patrolmen handling domestic quarrels, 
provide community-service information, answer complaints, 
and deal with neighborhood tensions and rumors. 44 

Some police departments are already making notable progress 
along these lines. Under a federal grant, the New York City 
Police Department has formed a "Family Crisis Intervention 
Unit" consisting of 18 highly trained officers to handle inter- 
family assaults and violence in West Harlem. Although it is 
estimated that as much as 40 percent of police injuries stem 
from family complaint calls, these crisis unit officers have not 
received any injuries in 15 months. Moreover, in the 1,120 
family crises in which they have intervened, there has not 
been a single homicide among the families. 45 At the root of this 
project is a recognition that specialized peacekeeping training 
pays off. 

Police departments throughout the country are beginning to 
conduct what is referred to as "provocation training." These 
projects range from training involving crowd control to handling 
of street corner disturbances. Provocation training entails, in part, 



The Police and Their Problems 303 

staging the kind of provocation which police offenders may 
expect to face on the job. The trainees are taunted by instructors 
who call them names, use obscene gestures, and generally imitate 
the kinds of abuse policemen may expect to face in the conduct 
of their assigned responsibilities. The purpose of this specialized 
training is to develop and maintain coolheadedness under 
extreme provocation. 

Other projects being conducted by large city police depart- 
ments involve efforts to establish closer links between patrolmen 
and the neighborhoods or communities they serve. The advan- 
tage of establishing firmer ties with the community is that it 
increases a police officer's capacity to make reliable judgments 
about the character, motives, intentions and future actions of 
those among whom they keep the peace. As Professor Wilson 
has suggested, "The officer's ability to make such judgments is 
improved by increasing his familiarity with and involvement in 
the neighborhood he patrols, even to the extent of having him 
live there. The better he knows his beat, the more he can rely 
on judgments of character. . . ." 46 One method being used by 
several police departments in achieving this end is through a 
return to the foot-beat policeman. Most cities which have 
increased the number of foot-beat patrolmen have used them 
as a supplement to squad-car or motorcycle beats, thus preserv- 
ing the mobility inherent in the latter technique. Other police 
departments have been experimenting with motorscooters in 
combination with foot-beat patrols. 

Another notable example of a department's attempt to bridge 
the gap between the police and the community is the model 
precinct project being conducted by the Washington, D.C., 
Metropolitan Police. This project involves the creation of neigh- 
borhood centers which are staffed around the clock by resident 
civilians as well as police officers. The police teams working out 
of the centers are assigned for long periods of time to work 
in the neighborhoods covered by the centers' jurisdiction. Instead 
of being spread thin, they have an opportunity to get to know 
families, youth on the street, householders, and proprietors of 
businesses much more intimately. With a narrower area of 
patrol responsibility, the possibilities for positive, interested, 
and friendly contact among police and citizens is greatly 
improved. 

The resident civilian workers, employed and trained by 
agencies such as welfare and legal aid, provide assistance to 
citizens referred by police on patrol, as well as to those who 
walk in off the street. These civilian positions help relate police 
peacekeeping to other activities of a positive help-giving nature, 
and to provide avenues by which civilians from the neighbor- 



304 Report of the Task Force on Law and Law Enforcement 

hood can formally assist in keeping the peace (and perhaps 
later enter into careers in law enforcement or allied fields) . 

MINORITY RECRUITMENT 

One fundamentally important method by which the police 
can improve their relations with the public is through increased 
recruitment of minority group policemen. The absence of many 
minority group policemen in our Nation's center city areas has 
been a source of community hostility for many years. 

This Task Force surveyed minority recruitment efforts by 
police departments in several large cities. Although we found 
a rising percentage of minority policemen being recruited each 
year, the ratio of white to minority group policemen on any 
force never approximated the ratio of white to minority citizens 
in any given city's total population. 

Many of the cities reported stepped up recruiting campaigns 
for minority group policemen. We inquired about the relative 
lack of success of such campaigns. One police chief answered: 

The problem as we see it is twofold: (1) in today's labor 
market there is full employment and special efforts are 
being directed toward the Negro community by private 
industry in an effort to attract qualified applicants. These 
companies are able to offer outstanding starting salaries and 
numerous fringe benefits that place police departments in 
a competitive disadvantage; (2) several of our Negro appli- 
cants have expressed the opinion that many segments of 
the Negro community regard Negro officers as "Uncle 
Toms" and enforcers of a white man's justice and are there- 
fore hesitant to apply with a police department. Also we 
have not been entirely pleased with our efforts in the Negro 
community. Organizations such as the Urban League and 
the NAACP have not been able to refer many applicants 
to the Department. 

There are other problems too. Although we found that in 
terms of percentages more minority group recruits succeeded 
in graduating from police training school than did white police- 
men, more minority applicants failed the original entrance 
examination than did whites. We do not feel that these failures 
were "arranged" by prejudiced police officials. The failures seem 
to us to reflect the tragedy of the ghetto schools' failure to edu- 
cate its students. 

The police are caught in a bind. Law enforcement consultants, 
Presidential and State crime commissions constantly urge that 
recruitment standards be upgraded. The result is that many 
applicants for police work who have attended ghetto schools 



The Police and Their Problems 305 

simply are not intellectually equipped to pass the entrance 
examinations. If more minority policemen are to be recruited, 
accommodations must be found for the disparities in public 
school education. 

Some police departments have been making commendable 
efforts at achieving such an accommodation. The Atlanta Police 
Department reported to us that during the summer months it 
employed 50 "Community Service Officers" between the ages 
of 17 and 21. These young men are recruited from the heart of 
the ghetto and are furnished police uniforms and equipment 
(except firearms). Their work is largely in the ghetto and has 
resulted in a betterment of police community relations. The 
Chief of Police reported to us that, most of them returned to 
school in October to finish their education and "we are con- 
vinced that eventually we will get at least 40 good patrolmen 
out of this group." 

Other cities have shown similar good faith through special 
recruitment campaigns by sound truck, neighborhood centers, 
newspaper, TV, radio and billboard advertisements. More 
efforts of these kinds are needed if minority group policemen are 
to have an equal opportunity to demonstrate an ability to serve 
the community in the interest of keeping the peace. 

CONCLUSION 

That the policemen of our country are both criticized and 
misunderstood by large and diverse elements of the population 
is becoming increasingly clear. That these diverse elements make 
inconsistent and contradictory demands on the police is also 
clear. As a result of being thus criticized and misunderstood, 
and being called upon to perform inconsistent and contradictory 
services in the front lines of our disturbed and often violent 
urban society, the policeman is becoming more confused not only 
about what his function is, but also about what it should be. 

Besides lacking the financial, manpower and technological re- 
sources necessary to respond adequately to the many demands 
made of them, the police also lack a coherent sense of what 
direction their changing mission must take. Our police conse- 
quently are becoming more alienated from many factions of the 
pluralistic society which it is their duty to protect. The police 
have thus begun to fight back, not only as individuals with 
threats and counterviolence, but also as an increasingly or- 
ganized group doing combat in the political arena. 

How are we to bring the police and the diverse groups they 
serve back together again? With regard to the police taking 
sides in primarily political struggles, bitter past experience, 
at least, dictates that the abstention of the professional 



306 Report of the Task Force on Law and Law Enforcement 

is the wisest choice. As to day-to-day contact between the police 
and the citizenry, there must be renewed attention to the peace- 
keeping role of the patrolman on the beat, which entails in part 
increased efforts to develop in the patrolman the understanding 
and coolheadedness which that vital role demands. Despite the 
depth of the hostility which exists between the police and some 
of the communities they serve, we believe that a "good cop" 
can still be a good friend to all of our people. Better training, 
supervision, and recognition, together with more effective minor- 
ity group recruitment, are needed if our hopes of producing 
police excellence are to materialize. 



REFERENCES 

1. President's Commission on Law Enforcement and Administration of 
Justice (hereinafter cited as Crime Commission), Challenge of Crime 
in a Free Society (Washington, D.C.: Government Printing Office, 
1967), at 92. 

2. See Arthur Niederfhoffer, Beyond the Shield: The Police in Urban 
Society (Garden City, N.Y.: Doubleday, 1967), at 95-108. 

3. See, generally, O. W. Wilson, Municipal Police Administration (1961) ; 
Bruce J. Terris, "The Role of the Police," 374 Annals 58-69 (1967); 
Crime Commission, supra note 1, Task Force Report: The Police; 
Schwartz and Goldstein, Police Guidance Manuals (1968) ; and James 
Q. Wilson, Varieties of Police Behavior (Cambridge: Harvard Univer- 
sity Press, 1968). 

4. Wilson, Varieties of Police Behavior, id., at 4. 

5. See generally, Paul Chevigny, Police Power; Police Abuses in New 
York City (New York: Pantheon Books, 1969); The Police: Six Socio- 
logical Essays, David Bordua, ed. (New York: John Wiley & Sons, 
1967) ; Jerome H. Skolnick, The Police and the Urban Ghetto (1968) ; 
Niederhoffer, supra note 2. 

6. Crime Commission, supra note 1, The Challenge of Crime in a Free 
Society, at 91. More recent reports indicate that the number of police- 
men in the United States has climbed to nearly 500,000, yet most de- 
partments are still undermanned. 

7. In ch. 17, infra, we discuss the possibilities for alleviating police man- 
power shortages through the use of citizen volunteers to perform some 
police functions. 

8. Not only are far fewer college graduates (or men with some college 
training) found among recruit classes but large numbers have only a 
high school equivalency diploma and still others are from the lower 
quarters of their high school classes. Time, Oct. 4, 1968, at 26, reports 
this true of recent Detroit police recruits; Chief William Beall of the 
Berkeley, California, Police Department calls it "a sharp decline in 
the educational level of recent police recruits; and an Oakland, Califor- 
nia, police captain with twenty-seven years service states: "We are not 
getting the type of college people in the department that we were before." 
See also Niederhoffer, supra note 2, at 16-17, 209-210. Part of the 
reason for this failure is that college graduates do not wish to begin 
a police career at the bottom of the ladder. Few police departments 
have adopted the Crime and Kerner recommendations for lateral entry 
for college graduates. 



The Police and Their Problems 307 

9. Staff interviews with a New York patrolman recently graduated from 
the Police Academy and with a police sergeant-instructor. See also 
memorandum from Prof. George D. Eastman to the Commission, dated 
Sept. 30, 1968, especially at 3-4. 

10. This Commission's Task Force Report entitled The Politics of Protest 
at 192-194 and Municipal Yearbook (Washington, D.C.: Internationl 
City Managers Association, 1968), at 339-350. Klein, The Police: 
Damned If They Do-Damned If They Don't (1968). 

11. Crime Commission, supra note 1, Challenge of Crime in a Free Society, 
at 113. See also James Q. Wilson, "Police Morale, Reform and Citizen 
Respect: The Chicago Case," in The Police: Six Sociological Essays, 
supra note 5, at 137-162. 

12. See discussion in ch. 21, infra. 

13. Ouinn Tamm, "Police Must Be More Free," in Violence In The Streets, 
Shalom Endelman, ed. (Chicago: Quadrangle Books, 1968). 

14. Id. 

15. See ch. 20, infra. 

16. E.g., the almost unanimous approval of the so-called "Fourth Platoon" 
Bill by the New York State legislature in the face of strong opposition 
by police organizations is a recent example of the complaints falling 
within the latter category. 

17. Schwartz and Goldstein, supra note 3, at Nos. 4, 7, and 9. And see 
our discussion of "over-criminalization" in ch. 23, infra. 

18. Id. 

19. See Wilson, Varieties of Police Behavior, supra note 3 at 83-139. 

20. 56 percent of the American public expressed approval of the Chicago 
police handling of unruly demonstrators at the Democratic National 
Convention last summer. New York Times, Sept. 18, 1968, at 25. 

21. Such efforts indue 1 e human relations courses, police-community councils, 
recruitment of minority group policemen, advanced educational oppor- 
tunities, and civilian complaint mechanisms. 

22. John Guidici, "Police Response to Crimes of Violence," a paper sub- 
mitted to this Task Force, at 1-14. 

23. See Report of the National Advisory Commission on Civil Disorders 
(Washington, D.C.: Government Printing Office, 1968) and Chevigny, 
supra note 5, at 161-179. 

24. See, e.g., Rights in Conflict, a special report to this Commission by 
Daniel Walker, Director of the Chicago Study Team. 

25. Guidici, supra note 22, at 7-8. 

26. See Rights in Conflict, supra note 24. 

27. See, e.g., The Politics of Protest, supra note 10; and Shoot-Out in 
Cleveland and Miami Report, two investigative reports submitted to 
the Commission. 

28. Wilson, Varieties of Police Behavior, supra note 3, at 248. 

29. Chevigny, supra note 5, at 51-83. 

30. Id. See also Chapman and Crockett, Gun Fight Dilemma: Police Fire- 
arms Policy (1963) ; Washington Post, Sept. 18, 1968, at A-l. 

31. Id. 

32. "The Administration of Complaints by Civilians Against the Police," 
77 Harv. L. Rev. 499, Jan. 1964. See also Thomas R. Brooks, " 'No!' 
Sav f h the P.B.A., New York Times Magazine, Oct. 16, 1966, at 37; 
Ralph G. Murdy, "Civilian Review Boards in Review," and Aryeh 
Neier, "Civilian Review Boards Another View," Criminal Law Bul- 
letin vol. 21, No. 8(1966) at 3 and 10; Kenneth Gross and Alan Reit- 
man, Police Power and Citizens* Rights (New York: American Civil 
Liberties Union, 1966) ; "Civilian Complaints Against the Police," 22 
Bar Bulletin 228 (New York County Lawyers Association) (1964). 

33. See ch. 7 of The Politics of Protest, supra note 10. 



308 Report of the Task Force on Law and Law Enforcement 

34. See Rights in Conflict, supra note 24. 

35. The proper role of the police in mass political confrontations is dealt 
with more extensively in ch. 16, infra. 

36. See, generally, Edwards, The Police On The Urban Frontier (1967) ; 
One Year Later (Washington, D.C.: Urban America, Inc., and The 
Urban Coalition, 1969) ; Reiss, "Police Brutality- Answer to Key 
Questions," Transaction, July/Aug. 1, 1968, at 10. 

37. Terris, supra note 3, at 58 and 64. 

38. See any of several articles on this subject by Prof. Samuel G. Chapman. 

39. "Training Cops in Covina," Capital East Gazette, Feb. 1969, vol. 3, 
No. 2, at 10, 12. 

40. E.g., the proposal of Washington, D.C., Black United Front concern- 
ing neighborhood control of police. 

41. These remarks were recorded during a staff interview. 

42. Not infrequently a decision by the policeman not to intervene is the 
wiser choice, particularly in situations where the police have not been 
called and where upon arriving at the scene the policeman sees that 
there is no real trouble brewing. 

43. Wilson, Varieties of Police Behavior, supra note 3, at 291. 

44. James Q. Wilson, Dilemmas of Police Administration," Public Admin- 
istration Review, SeptyOct. 1 1968, at 407, 412, 413. 

45. See testimony of Patrick V. Murphy, before the Violence Commission, 
Oct. 30, 1968; Sullivan, "Violence, Like Charity Begins at Home," 
New York Times Magazine, Nov. 24, 1968; and Bard, "latrogenic 
Violence", statement submitted to this Task Force, Oct. 4, 1968. 

46. Wilson, Varieties of Police Behavicr, supra note 3, at 291. 



CHAPTER 15 

OFFICIAL RESPONSES TO MASS DISORDER 
I: CURRENT SOCIAL CONTROL* 



Recent civil disorders have created a crisis for Americans. 
They also created a crisis for the police and supporting control 
forces, who, in general, found themselves ill-prepared, inade- 
quately trained, and poorly equipped to cope with mass lawless- 
ness. 

MAJOR PROBLEMS OF RIOT CONTROL 

Unlike the disturbances and violence of past riots, the civil di- 
orders of the 1960's have created control and community problems 
not mentioned in the standard police riot control manuals. Ac- 
cording to the Guidelines for Civil Disorders and Mobilization 
Planning, which the U.S. Department of Justice made available to 
U.S. law enforcement agencies recently : 

The riot situations experienced, particularly in the large 
cities, have taken on a different form and dimension from 
that which has been described in the most current police 
literature on How to Control a Riot. Thus, the textbook riot 
has not occurred to any great degree, and the textbook con- 
trol measures have thus proven unusable. 

The instant nature of the neighborhood riot makes the new dis- 
orders a particularly difficult control problem. In every major 
city with a large minority population, the underlying tensions 
that exist today constitute an ever-present explosive environment 
for civil disorder. The attendant violence and destruction outrace 
the capability of the public safety forces to respond in the time 
and with the strength required. 

* This chapter was prepared by Joseph R. Sahid on the basis of research 
contributions by Arnold Sagalyn, Senior Staff associate, Arthur D. Little, 
Inc., and Louise Sagalyn, District of Columbia Bar; Albert Bottoms of 
Chicago; and Gustav Rath, Professor of Industrial Engineering and Director 
of the Design Center, Technological Institute, Northwestern University; 
and Richard J. Kendall, Associate, Shaw, Pittman, Potts, Trowbridge, and 
Madden, Washington, D.C. 

309 



310 Report of the Task Force on Law and Law Enforcement 

This fact is particularly true with respect to the black communi- 
ties, with their extremely high density and disproportionate num- 
ber of youths who feel a deep hostility to the police. In such a 
setting, an otherwise routine incident, particularly one involving 
the police, can easily attract a large crowd. In the tension and 
hostility thus created, any spark, like an inciting rumor, can 
ignite a serious riot. By the time the police can respond to the 
disturbance, the situation has often escalated beyond their capa- 
bility to control it. 

Moreover, the indigenous nature of the mob and the densely 
populated character of the neighborhood make futile the tradi- 
tional riot squad formations and tactics for dispersing crowds. 
The rioters and on-lookers merely retreat inside the neighborhood 
buildings only to reappear once the control forces have passed by. 

No single control problem that confronts a city when a riot 
erupts therefore, can become more serious than that of insufficient 
police on hand to appropriately and effectively control a riot that 
erupts without warning and involves a large number of people. 
Nearly 75 percent of all cities over 100,000 population, for exam- 
ple, have less than 500 policemen. Only 19 cities have 1,000 or 
more. 

The multitude of duties and responsibilities assigned to the 
police force requires the allocation of personnel for a wide variety 
of patrol, traffic, detective, administrative, and support duties. The 
need to divide the police force into three shifts to provide pro- 
tective and other assorted police services 24 hours a day, 365 
days a year, with provision for days off, sick leave, and vacation 
further depletes the total available strength. As a result of all 
these factors, only slightly more than 10 percent of a uniformed 
police force will normally be on street duty during any given shift. 

As the report of the National Advisory Commission on Civil 
Disorders noted, a city of 500,000 population is likely to have 
less than 100 uniformed policemen on duty at any given time, 
while a city of 100,000 population will not even have 25 men to 
police the entire city. Moreover, since this force widely disperses 
over many square miles, not all of these will be immediately avail- 
able nor capable of getting to the scene rapidly. In addition, a 
police administrator has to consider the risks and dangers to the 
rest of the community if the demands of controlling a disorder 
leave other parts of the city unprotected. 

Mobilizing off-duty policemen becomes a time-consuming prob- 
lem, averaging between an hour and a half to two hours for most 
large cities. Yet, civil disorder, like a fire, can rapidly grow out 
of control unless it is dealt with quickly in the very early stage. 
During the first minute of a disorder, a hundred well trained and 
commanded policemen can often prove more important and effec- 
tive than one thousand men a few hours later. 



Official Responses to Mass Disorder 311 

Unfortunately, no outside available reserves exist for most 
cities to call on quickly enough to control a large disorder at its 
incipient stage. Mutual assistance pacts do not exist in most 
states. Moreover, few mayors would release many police per- 
sonnel to assist other cities because they might be needed in their 
own community. 

Nor can the local police turn to state police forces to provide 
manpower in sufficient numbers and in the quick response time 
required. Existing state police forces lack the strength, training, 
and organization to provide local communities with the kind of 
riot control assistance needed. Of the 49 states that have state 
police forces, 28 have less than 500 policemen in the entire state. 
Only 7 states have more than 1,000 men. More than half of the 
states have essentially highway patrolmen who are widely dis- 
persed to patrol thousands of miles of state roads. As a result, 
they cannot be readily mobilized and quickly deployed to the 
cities where they may be needed in the event of an emergency. 

The problem of reserves for riot control is not solved by Na- 
tional Guard units which are ill-suited and untrained to serve as 
effective or practical riot control forces except on a very infre- 
quent and emergency basis. The part-time nature of Guard per- 
sonnel means that if they are called up more than a few times 
during a short interval, or if they are called into service to serve 
for an extended period of time, the men and officers face financial 
hardships and risk jeopardizing their regular civilian employ- 
ment. Thus, frequent use of the National Guard would make it 
difficult for the Guard to retain and recruit personnel. 

It is even more unrealistic to look to Federal troops to deal with 
urban riots. Rigid constitutional and related restrictions rule out 
the use of Federal forces to assist a community except as a last 
resort after the state has exhausted all its resources. 

Consequently, few police departments can take effective action 
against rioters when a large-scale disorder first breaks out. 
Pending the arrival of sufficient forces, the inadequate number of 
policemen available cannot stop the rioting and arrest looters and 
others who are violating the law. 

The need to stop looting, arson, and other acts of destructive 
violence has focused increasing attention on the importance of 
non-lethal weapons and techniques which will enable the avail- 
able police to suppress and arrest those violating the law and to 
disperse the crowd or mob. Traditional police weapons, including 
the stick and the gun, provide either too little or too much physical 
force to control a riot effectively and judiciously. Given the inade- 
quate manpower of police departments in a mass disorder, new 
control tools become critical for police to curb lawlessness and 
violence quickly and successfully. 

Another major problem inherent in the normal operations and 



312 Report of the Task Force on Law and Law Enforcement 

training of a municipal police department is the individual police 
officer. Having broad discretionary powers regarding the methods 
he chooses to handle the wide variety of law enforcement tasks 
he encounters, he is trained to exercise his own independent 
judgment with a minimum of supervision. 

Effective riot control, however, requires manpower organized 
and trained to operate as members of a highly disciplined team, 
similar to a military unit. Control personnel must not exercise 
individual judgment or initiative but should act in strict accord- 
ance with the orders of their commanders. 

As James Q. Wilson has observed : 

Those police departments that have, by their actions, ex- 
acerbated tensions or failed to maintain order might be said 
to be those that have failed to recognize the radical difference 
between their normal duties and those they are called upon 
to perform in critical events. The desire of an individual 
officer to assert his personal authority may be inevitable and 
perhaps desirable in patrol situations; it can be disastrous 
in a mass deployment of police when discipline and con- 
certed action are necessary. 1 

A police department, therefore, faces formidable organizational 
and operational problems in trying to shift suddenly from its 
regular stance into an entirely new and different type of control 
body required in a riot emergency. 

A major weakness of many police departments is the absence of 
a reliable intelligence system. The absence has gravely handi- 
capped police and public officials in anticipating and preventing 
trouble, and in minimizing and controlling a disorder that has 
broken out. In large part, this happens because of a failure to 
learn about and to understand neighborhood problems and griev- 
ances and to develop reliable information concerning community 
organizations and leaders. Related to this problem is the need 
for a reliable mechanism to monitor, to collect and to evaluate 
rumors and also the need for an effective program to counter false 
and provocative rumors which can aggravate tension and incite 
violence. 

Another major problem is police communications. The shortage 
of needed radio frequencies, cited by both the Crime and Civil 
Disorders Commissions, and the inadequate present communica- 
tions equipment essential to insuring effective command and con- 
trol over field forces during a disorder, still remain as a critical 
issue. 

But no problem is more acute than that of training. A survey 
of riot control training in a selected sample of major police 
departments made for the Civil Disorders Commission disclosed 
that of all police control capabilities studied, training constituted 



Official Responses to Mass Disorder 313 

the "most critical deficiency of all." Although many police de- 
partments have recognized the need for more training and have 
increased their training programs, the amount of training which 
most police forces have received remains very short from that 
needed to insure a professional riot control capability. 

These, then, are the major problems facing control forces in 
subduing mass disorders. The Kerner Commission took note of all 
of them and made recommendations to deal with most of them. 
While most cities appear to have strengthened their civil disorder 
capabilities to varying degrees, serious deficiencies, unfortunately, 
still remain. 

CIVIL DISORDERS COMMISSION RECOMMENDATIONS 

The best and most obvious approach to a civil disorder, the 
Kerner Commission concluded, was that of prevention. Public 
officials, principally mayors and police administrators, were 
urged to do everything possible to prevent a disorder from oc- 
curring in the first place. 

The Commission urged officials to reexamine and rectify police 
conduct, operations, and practices that lead to harassing and 
contribute to or create community tensions and hostility. As 
studies made for that Commission showed, inadequate police pro- 
tection and a belief that a dual standard of law enforcement 
existed constituted major grievances by minority residents. "The 
abrasive relationship between the police and the minority com- 
munities, the Commission concluded, has been a major and 
explosive source of grievance, tension and disorder." 2 A de- 
crease in hostility and improved police-community relations re- 
sulted from the establishment of an effective grievance mechanism 
which would cover other municipal services as well as the police, 
and the issuance and implementation of policy guidelines which 
would guide police officers in those sensitive areas where police 
conduct may create tension and precipitate a disorder. 

Both the police and the community, the Commission also con- 
cluded, would benefit from greater police involvement in com- 
munity service matters. Such community service functions would 
enable police officers to identify problems that could lead to dis- 
order. In the view of the Commission, the performance of such 
duties would earn the police community respect and support. An 
additional benefit directly accruing to the police would flow 
from the development of invaluable sources of information and 
intelligence. 

In another riot prevention measure, the Commission endorsed 
the recommendations made by the President's Crime Commission 
for the establishment of a community service officer program to 
attract neighborhood youths between the ages of 17 and 21. As 



314 Report of the Task Force on Law and Law Enforcement 

junior police officers, they could perform a variety of duties short 
of exercising full law enforcement functions and could help to 
establish needed channels of communication with minority com- 
munities. 

The Civil Disorders Commission also stressed the importance of 
expanding and strengthening special community relations and 
training programs designed to increase communications and de- 
crease hostility between the police department and Negro resi- 
dents. Concurrently, the Commission pointed to the particularly 
critical need for making police department award systems recog- 
nize the work of officers who improve relations with alienated 
members of the community. 

It also urged the assignment to ghetto areas of seasoned, well- 
trained policemen and supervisory officers who could prevent and 
minimize tension situations leading to a riot. 

In the event prevention failed and a disorder erupted, it urged 
the police to respond with sufficient speed and strength to insure 
that they handled the incident properly and contained it quickly. 
Studies made by the Civil Disorders Commission led to the con- 
clusion that the way the police and the community responded to 
the initial incident usually determined whether the disturbance 
remained a relatively minor police problem or developed into a 
serious disorder. 

The ability of the police to deal with the initial incident, it was 
found, depended on several key factors : the accurate assessment 
of the incident and the nature and degree of control required ; the 
speed with which sufficient police manpower arrived ; the proper 
deployment and decisive use of the force, which required seasoned 
commanders to direct and to insure discipline over the field per- 
sonnel ; and, good intelligence, with the capability to utilize it for 
decision-making. 

To insure that a police department could deal with such emerg- 
ency problems successfully, the Commission recommended that 
every police department develop and pretest plans which would 
quickly muster the manpower and seasoned senior commanders 
needed at the scene of the disorder. Proper planning would 
provide not only for the rapid deployment of on-duty personnel, 
but would also make provision for the call-up of off-duty police 
and for their logistical support; alerting and coordinating the 
operations of municipal and outside agencies involved in the con- 
trol of a disorder, and anticipating the numerous operations and 
tactical requirements that would arise. 

In the event the initial incident escalated into a riot, the police 
department must make a rapid transition from its normal opera- 
tions into a different type of organization with new operational 
procedures designed and geared to meet the special emergency 
mass control problems. Here again, good planning was para- 



Official Responses to Mass Disorder 315 

mount. To assist police administrators in this crucial riot control 
requirement, the Commission recommended that model mobiliza- 
tion and operations plans, which had been prepared by its staff, 
should be updated and disseminated by the U.S. Department of 
Justice to local and state police departments. 

The Commission urged immediate and priority attention for 
riot control training : 

Departments should immediately allocate whatever time 
is necessary to reach an effective level of riot control capa- 
bility. . . . Training must include all levels of personnel . . . 
and must be a continuous process for all personnel. . . . Riot 
control training must be provided to groups expected to func- 
tion as teams during actual riot conditions. . . . Mayors and 
other civil officials must recognize the need and accept the 
responsibility for initiating regional training and coordina- 
tion with military and state police personnel. . . . Police 
agencies must review and become familiar with recent riot 
experience so that training programs can be realistically 
adjusted in the light of anticipated problems. . . . 3 

Because of the urgency of this problem, the Commission wrote the 
President on October 7, 1967, recommending that the Department 
of Justice conduct "a series of intensive training conferences this 
winter for governmental and police officials." In its report to the 
President in March, 1968, the Commission enunciated a long list 
of training recommendations for improving riot control training 
for all levels of police personnel. 

The Kerner Commission also urged the establishment of a 
national center and clearinghouse "to develop, evaluate and dis- 
seminate riot prevention and control data and information." 

In pointing to the grave danger of overreaction by the police, 
the Commission stressed the importance of adhering to the well- 
established legal and moral principle that only the minimum 
amount of force necessary be used to control a disorder and to 
maintain order. The use of indiscriminate, mass destructive 
weapons, such as automatic rifles and machine guns, was specifi- 
cally denounced as unwarranted and counterproductive. 

The Commission advocated that police forces follow the example 
of the U.S. Army and use nonlethal chemical agents, especially 
CS, instead of deadly weapons. It further recommended that the 
federal government undertake a program to test and evaluate 
non-lethal weapons and related control equipment for use by 
the police, and that it develop appropriate riot control tools and 
material. 

Another major finding of the Commission revealed that "civil 
disorders are fundamental governmental problems, not simply 
police problems." Accordingly, it recommended that "the mayor, 



316 Report of the Task Force on Law and Law Enforcement 

as the chief elected official, [must] take ultimate responsibility for 
all governmental actions in times of disorder." In seeking to re- 
store order, it urged the police to recognize and to utilize the 
forces for order that exist within the community. 

It also emphasized the importance of insuring greater coordina- 
tion of all government agencies involved in control problems, in- 
cluding the pretesting of plans. 



PROGRESS SINCE CIVIL DISORDERS 
COMMISSION REPORT 

Since the Civil Disorders Commission made its report in 
March, 1968, most major police departments have made marked 
progress in strengthening their riot control capabilities. Planning 
has improved, as has intelligence. The assignment of more sea- 
soned and better-trained personnel to respond to the all-important 
initial incident, greater attention to effective command and con- 
trol of field personnel, utilization of neighborhood leadership and 
resources to help prevent and control disturbances and the use 
of only the minimum amount of force necessary all exist now 
in greater evidence than formerly. 

The improvement has been notable and national in scope. Prog- 
ress has resulted from programs such as the series of fourteen 
one-week conferences on the Prevention and Control of Civil Dis- 
orders sponsored jointly by the Department of Justice and the 
International Association of Chiefs of Police, as a result of recom- 
mendations made by the Civil Disorders Commission to the Presi- 
dent. More than 400 mayors, city managers, and police officials 
from the nation's 136 largest cities, focused attention on the major 
problems and lessons learned from previous riots. The conferences 
proved decisive in disseminating the teachings of the Civil Dis- 
orders Commission to local officials, enabling them to upgrade the 
effectiveness of thier official response. 4 

To strengthen Federal intelligence capabilities, the Department 
of Justice established a Civil Disorder Intelligence Unit to com- 
pile and computerize information from Federal investigative and 
other sources relating to civil disorders. 

For its part, the Department of Defense implemented meas- 
ures to assist local and state governments in civil disorder plan- 
ning and to improve the Federal military and National Guard 
response to civil disorder. The Army Military Police School con- 
ducted special riot control planning and training courses for 
local and state police officials. Army representatives reviewed 
civil disorder plans in a large number of cities to insure effective 
coordination with respect to the local, state, and federal plans. The 
Department of Defense also created a Civil Disturbance Director- 



Official Responses to Mass Disorder 317 

ate in the Pentagon with over-all responsibility for military riot 
control activities. 

Another significant development was the recognition and 
demonstration of non-lethal riot control agents in dispersing 
rioters and preventing looting. When severe rioting broke out in 
Washington, B.C., in April 1968, the police employed the chemical 
agent CS, in lieu of deadly firearms, to restore order; its effect 
on rioters was described by one policeman as "phenomenal." It 
strongly deterred those exposed to this non-lethal control agent 
from any activity which would risk another dose. It was so effec- 
tive, some police officers reported, that if they merely tossed an 
ordinary beer can, which resembled a CS container, the crowd 
would quickly scatter. The mere dropping of CS inside a store that 
had been broken into immediately deterred future rioters from 
entering. 

In a letter sent to heads of major law enforcement agencies 
during the summer of 1968 (Aug. 12), Attorney General Ramsey 
Clark wrote : 

Although they are not universally adaptable to all police 
uses, nonlethal chemical agents represent the best immediate 
alternative to the use of deadly force or no force at all. 
They are now proven to be the most effective, safest, and 
most humane method of mob control. Used with caution 
when the need arises, they will reduce death, physical injury 
and property loss to a minimum. 

The Department of Justice currently sponsors a technical as- 
sistance program, under the direction of the International Asso- 
ciation of Chiefs of Police, to assist police departments in develop- 
ing a more effective chemical agent capability. The IACP has 
already prepared and disseminated to police departments in- 
formation material on CS, including its characteristics, uses, pre- 
cautions, and the problems of first aid and decontamination. 

The valuable lessons learned from the Commission report, from 
the disorder prevention training conferences, and from the vari- 
ous Army support programs, were reflected in the responsible 
and effective response by communities affected by the assassina- 
tion of Dr. Martin Luther King. Despite the explosive climate 
and the aggravated tensions generated by the assassination, only 
a handful of cities suffered serious disorders. 

The experience during the summer of 1968 was equally dra- 
matic and encouraging. Despite fearful predictions of a tremend- 
ous increase in the number and severity of civil disorders, there 
was a clear and significant drop. The Civil Disturbance Informa- 
tion Unit of the Department of Justice recorded 19 deaths result- 
ing from civil disturbances during June, July, and August of 1968, 
compared with 87 during the same period the previous year. 



318 Report of the Task Force on Law and Law Enforcement 

The National Guard was called in for assistance 6 times during 
the summer of 1968 compared with 18 during the summer of 1967. 
The number of disturbances listed as major or serious by the 
Information Unit was 25 compared with 45 the previous summer. 5 
In assessing the relatively peaceful summer of 1968, Attorney 
General Clark praised the police as deserving a major share of 
the credit. 

There were many reasons to believe that the summer of 
1968 would be the worst in our history. In the Spring, most 
observers thought so. Yet there was a clear and significant 
decline in the number and severity of riots and disorders 
this summer. 

There are many reasons for the improvement this year. 
In my opinion, the police are entitled to much of the credit. 

Despite the springtime publicity indicating otherwise, 
the police response was generally not based on massive re- 
pressiveness. When violent outbreaks occurred, they were 
usually controlled by adequate police manpower trained to 
neither overact or underact. It is impossible to count the 
number of riots that were prevented by police. I believe they 
were many. 6 

Despite these decided improvements, critical deficiencies still 
exist. Lack of effective operational planning, manpower short- 
ages, communication problems, and the ever-increasing threat of 
extremist activity among political and racial groupings and 
within law enforcement agencies, all still represent significant 
problems. 

THE NATIONAL GUARD 

The Civil Disorders Commission found repeated instances of 
sub-standard performance by the National Guard during the 
1967 civil disorders. Like police forces, National Guard units had 
found themselves unprepared to handle the urban disorder that 
erupted. They had not pre-planned, they had little training for 
riot control, and they had poor leadership. 

Like police departments, Guard units have seldom been ex- 
pected to respond to civil disorders as a primary mission. Since 
World War II, the National Guard's primary responsibility has 
been to provide organized units of trained personnel with suffi- 
cient and suitable equipment to augment the federal active Army 
and Air Force in time of war or national emergency. While the 
National Guard is nominally under the control of state governors, 
the federal government has priority over its use and pays for 
90 percent of its operating costs, provides virtually all of its 
equipment and nearly half the cost of its physical installations 
and facilities. 



Official Responses to Mass Disorder 319 

Furthermore, the federal government, through the Department 
of Defense, prescribes in minute detail the training National 
Guardsmen shall receive. Because of this, the National Guard's 
state mission, which is to support civil authority, was virtually 
disregarded in training policy prior to 1967. 7 

Nevertheless, the Guard provided a force better prepared in 
1967 to deal with civil disturbance than metropolitan police 
departments. The active Army had trained virtually all Guards- 
men for at least two months in basic combat skills and for 
2 to 4 months in more technical military training. This emphasis 
on discipline and unit control proved useful on the streets of our 
cities. Futhermore, National Guard officers had for the most 
part met the standards set by the Department of Defense for 
officers on active duty. 

As the Civil Disorders Commission indicated, the Guard ap- 
parently needed an increased emphasis on their state function as 
a force for the control of civil disorder. 

This role was recognized in a January 1969 report prepared 
by the Department of Army, under the signature of Robert E. 
Jordan III, General Counsel. 

The disorder that occurred in Detroit in July 1967, may 
be considered an important landmark: i.e., from this point 
forward the military services, in concert with many agencies 
of government at all levels, devoted time, effort, and means of 
an unprecedented scale to prepare to deal effctively with out- 
breaks of mass violence. The results have clearly been worth 
the effort. Due to increased training emphasis, more thor- 
ough planning, more effective assignment of responsibilities 
and streamlined operational procedures, the response of the 
National Guard and federal forces to civil disturbances dur- 
ing 1968 was rapid, effective and decisive. 

The Army made a hasty revision of its training doctrine in riot 
control and made it available to the Adjutant General of each 
state after the Detroit riots. At the same time, the National 
Guard in many states started to revise their training efforts, 
based on events in Newark and Detroit, so that those units 
scheduled for annual field training during August could key their 
training to the characteristics of recent riots. 

On August 10, 1967, the National Guard Bureau initiated a 32- 
hour program of revised intensive training for all National 
Guard units to be completed by October 1, 1967. It gave a special 
16-hour course to all officers in the same period. During the 
spring and summer of 1968, all Army National Guard units con- 
ducted refresher training, ranging from 4 to 33 hours per unit, 
the amount being based on the potential for disorder in a given 
community or state, and on the state Adjutant General's assess- 



320 Report of the Task Force on Law and Law Enforcement 

ment of need. Leadership courses were initiated, based on a 
program developed by the Army at Fort Benning, Georgia. As 
of January 15, 1969, more than 10,000 Army National Guard 
officers had completed the course, aimed at preparing junior 
officers for leadership in civil disturbance duties. The Army also 
initiated a course in civil disturbance operations for senior mili- 
tary officers and police officials. To date, 772 high-ranking Na- 
tional Guard officers have completed this course. 

Since the National Guard is organized as a military force, 
integral planning staffs exist at all levels. All states have senior 
officers who are graduates of the Army's Command and General 
Staff School at Fort Leavenworth, Kansas. This training consti- 
tutes a considerable asset, not presently available to police depart- 
ments, and apparently enabled the Guard to rectify planning 
deficiencies noted by the Civil Disorders Commission. The Depart- 
ment of the Army and the National Guard presently have detailed 
and up-to-date civil disturbance plans a notable and commend- 
able response to a national need. 

The National Guard in each state developed state, area, and city 
plans using Army-furnished planning packets. It has developed 
contingency plans and coordinated planning with Federal, state, 
and local officials. But police departments are slow to initiate com- 
plementary plans ; this reluctance has resulted in unnecessary 
problems during actual riot control operations. 

The National Guard plans for alerting and mobilizing their 
troops were reviewed and revised, and procedures were enacted to 
insure continual revision. As a result, the time required to as- 
semble units has been shortened. Further, the Guard has recog- 
nized the value of testing its plans through command post and 
field training exercises, and they have had considerable chance 
to improve their plans following actual operations in 1968. 

An expanded effort to increase Negro membership in the 
National Guard became a top priority program following the 
1967 disorders. The exclusion of Negroes from National Guard 
membership had not been the official policy in any state, 
and all states had regulations or laws aimed at maintaining an all- 
white Guard had been rescinded or repealed prior to 1967. 
In general, however, no real effort had been made to desegregate 
National Guard units and those states that had programs had 
produced negligible results. 

Two significant steps were taken by the National Guard in 
the period immediately following the Newark and Detroit riots. 
First, the National Guard Bureau contracted for and received 
an in-depth survey of Negro attitudes toward military serv- 
ice in general and National Guard service in particular, to pro- 
vide a factual basis for planning future recruiting efforts. Second, 
Major General James F. Cant well, Commander of the New Jersey 



Official Responses to Mass Disorder 321 

National Guard and President of the National Guard Association 
of the United States, proposed to the Department of the Army 
that he be granted a 5 percent overage in the authorized strength 
of the New Jersey Army and Air National Guard, to provide addi- 
tional vacancies to be filled only by Negroes. He also requested 
and received additional financial support and professional guid- 
ance from the National Guard Bureau to conduct an intense pub- 
licity, advertising, and promotion campaign aimed at qualified 
young Negro men in New Jersey. 

The New Jersey recruitment campaign became a pilot program 
to guide the formulation of similar programs in other states. An 
overstrength allocation of 865 spaces was granted. The program 
began three weeks after the Detroit disorder and utilized a variety 
of techniques, such as publicity through newspapers, radio, tele- 
vision, billboards, handbills, and personal contacts. At the end of 
ICM/i months, Negro membership in the New Jersey Army and 
Air Guard stood at slightly more than 1,100, a gain for the period 
of 767. At the beginning of the program 1.82 percent of the 
17,265-man New Jersey National Guard was Negro. By July 1, 
1968, Negro membership had climbed to 6.34 percent. 8 

The success of this program must be qualified by the meager 
results apparently experienced in other states which have re- 
cently conducted similar campaigns without the benefit of federal 
support. Plans are now being made, however, by the National 
Guard Bureau to allocate additional funds for a nationwide ver- 
sion of the New Jersey program. 

The National Guard has attained a noteworthy level of effec- 
tiveness in riot control operations within the last year. During the 
same period, the Guard mobilized 25,000 individuals for active 
duty in Vietnam and elsewhere and also underwent a substantial 
reorganization of its troop structure, further taxing its resources. 

Nevertheless, too many limitations have been placed upon the 
National Guard to control outbreaks of civil disorder. One reason 
for the Guard's effectiveness is that the hostility directed at 
policemen by the diverse groups engaged in mass protest has not 
yet been directed at the military forces. This reaction is a major 
asset, but the danger of losing it is great, if the nation should 
rely primarily on the National Guard for riot control. Further- 
more, the National Guard composed for the most part of civilians 
with occupations which compete strongly for their time and effort, 
is limited by the number of times it can mobilize these men 
without causing severe dislocation and hardship, and inevitably 
lowering morale. Moreover, the Guard's ability to perform its 
federal mission to support the active Army is lessened if the 
states increasingly rely on Guard units to control civil disturb- 
ances. 9 

Some city and state authorities during the last year have ex- 



322 Report of the Task Force on Law and Law Enforcement 

hibited a tendency to overreact by requiring the Guard to assem- 
ble prematurely or under circumstances where they are not 
necessarily required. For example, according to figures released 
by the National Guard Association of the United States on Janu- 
ary 1, 1969, members of the District of Columbia Guard devoted 
61 days to duty with the National Guard during 1968. In Wilming- 
ton, Delaware, 75 National Guardsmen at any one time served 
continuous nighttime riot patrol duty from April 17, 1968, until 
January 20, 1969. Obviously few men with civilian occupations 
and interests can continue this type of performance on a volun- 
teer basis. The National Guard's function in riot control, there- 
fore, must remain essentially that of supporting the local au- 
thorities. 

LOCAL LAW ENFORCEMENT AUTHORITIES 

The knowledge needed to deal with civil disturbances is pres- 
ently available to anyone who wishes to pursue it. The interest 
generated by the problem itself and by the work of the Civil Dis- 
orders Commission has led to the publication of several valuable 
handbooks which outline in detail the proper official response to 
mass disorder. 10 Yet local officials have been slow to adopt these 
recommendations for several reasons. 

While divided responsibility and staff organization character- 
izes most large-scale business, civil, and military enterprises, few 
police forces have yet to use such a structure. The demands of 
immediate problems have forced police departments to operate 
on a day-to-day basis with little time to devote to long-range 
planning. 

Moreover, police departments seldom employ outside consult- 
ants to recommend long-range planning needs. Planning is more 
often than not conducted by a few overworked higher ranking 
police officials based on their own personal experiences. 

Additionally, an acute shortage of funds to hire and train 
men exists. While local and state governing bodies have been 
quick to appropriate money for armored vehicles and other weap- 
ons, many have not yet responded with adequate funds to establish 
training schools or planning staffs. 

The result of this lack of attention given to long-range planning 
presents a disturbing profile of the readiness of our urban police 
forces to deal with mass disorders. 

A survey made of eight cities that experienced disorders fol- 
lowing the assassination of Dr. Martin Luther King disclosed that 
many deficiencies in planning and operations remained. 11 The 
chief criticism made of some plans was that they lacked flexibility 
and had not been subjected to needed pretesting. The failure of the 
police call-up system to perform as provided in the mobilization 



Official Responses to Mass Disorder 323 

plan seriously impaired the effective emergency response of off- 
duty personnel. 

Studies by Bottoms and Rath of 16 major American cities 12 
have shown that the present level of preparedness of our police 
forces generally is not yet adequate to deal with civil disturbances. 
As one might expect, the departments varied widely in their po- 
tential ability to respond to civil disorder. The following deficien- 
cies continue to plague many of our cities : 

1. Generally, no formal, respected, dependable communication 
links can be depended upon to remain open between dissident 
groups and city authorities. 

2. Generally, no formal, dependable lines of communication 
exist among citizen groups, academic institutions, and agencies 
of the state and federal governments. 

3. Information needed for decisions in potentially dangerous 
situations often fails to reach the executive level because of staff 
bias or because of lack of proper interpretation. 

4. In general, major American cities fail to provide the Mayor 
or Executive Officer with effective planning staffs. Thus, hap- 
hazard coordination and liaison exist among city departments 
and with external agencies. 

5. Confusion often exists concerning authority and command 
responsibility. Fragmenation of jurisdiction in many metro- 
politan areas exacerbates the problem. Many police do not rec- 
ognize that they are under the direction of duly constituted civil 
authority at all times. They also seem unaware that regular U.S. 
Army troops are only under U.S. Army Command. 

6. Planning for civil disorders in the police departments of 
major American cities ranges from reliance on the kind of emer- 
gency plans used in connection with fires or major sporting 
events, to detailed tactical contingency plans developed for spe- 
cific potential trouble spots in a city. In some cases existing 
plans date as far back as five years, predating all recent sig- 
nificant disturbances such as Watts, Detroit, Newark, and the 
April disorders of 1968. In other cases, the plans intertwine 
with various departmental regulations and manuals. 

Contingency planning, except for plans developed for specific 
areas or events, is almost nonexistent. The offered explanation 
is that the uncertainty in the case of violent confrontation pre- 
cludes meaningful detailed planning. The aspects of civil dis- 
order planning most carefully covered are mobilization plans and 
the establishment of police command relationships. Police de- 
partments give least attention to strategy and tactics, defense 
of vital installations, and coordination with agencies other than 
police agencies. 

7. Few police departments pretest existing emergency plans. 
Thus, neither command nor street personnel know or understand 



324 Report of the Task Force on Law and Law Enforcement 

the content of plans and the requirements for execution. Un- 
familiarity with plans and assignments can cause confusion, 
wasteful allocation of scarce manpower, and responses that lack 
relevance or timeliness in a given situation. 

8. Although all police departments have conducted additional 
training in riot control subjects, the number of hours devoted 
to training each man within a given force has not increased sig- 
nificantly. Some departments have, however, established special 
civil distubance units and concentrated the majority of their riot 
control training on this complement. 

9. The importance of police organization for civil disorders ap- 
pears to be imperfectly understood by the police. Few depart- 
ments recognize that the unit replaces the individual when it 
takes a military stance. Except for anti-sniper teams and mass 
arrest processing teams, they make little use of task elements 
composed of teams identified before an emergency arises. 

10. Police departments conduct practically no unit training. 
While a department may send occasional individuals to schools, 
such as those operated by the U.S. Army at Fort Gordon or Fort 
Ord, the only clear opportunity to give unit training to large 
numbers of force members is at the police academies used to 
train recruits. The pressure to provide uniformed policemen for 
day-to-day duty has forced most police departments to rush men 
through academy training rather than add a substantial amount 
of unit-type training to the curriculum. 

11. The police departments are having less difficulty procuring 
special equipment to conduct riot control operations. This ac- 
quisition is not necessarily heartening, however. Some of this 
equipment is in the form of high-powered firearms and armored 
vehicles which, as has been repeatedly stressed, have marginal 
value in the orderly control of mass disturbances. Unless the 
quality of training of the men who control this equipment is 
significantly improved, the use of this equipment as a substitute 
for more considered action may lead to unnecessary bloodshed. 

12. Considerable discussion, concern and confusion exist for 
developing police guidelines in the use of firearms, batons, non- 
lethal chemicals, and the rules of engagement. These guidelines 
encourage restraint and define for the individual policeman the 
boundaries placed upon his actions, but the various riot control 
groups have not yet been able to arrive at uniform policies with 
respect to the use of firearms and non-lethal weaponry. 

13. Many departments cited press relations as one of the most 
significant problems they face. Yet few of them reported an in- 
formation plan providing for press officers, briefing rooms, and 
other special arrangements for dealing with the press during 
riots. 

14. Police departments must coordinate with the judicial sys- 



Official Responses to Mass Disorder 325 

tern regarding procedures and methods for dealing with prob- 
lems of mass booking, detention, and transportation of prisoners. 
In some cases, police departments have established peripheral 
liaison with church groups, the ACLU, and bar associations, but 
most of these programs are weak, sketchy, and ineffective. 

Effective planning by police departments can help compensate 
for the lack of preparedness which presently stems from practical 
restraints placed on their ability to train for mass disturbance 
control. This commitment to planning will require that police de- 
partments develop planning staffs similar to those used by mili- 
tary organizations at all levels. The use of the staff can give 
commanders the opportunity to review their objectives, to con- 
sider alternatives, and to analyze their resources through calm 
consideration prior to actual commitment to riot control. A staff 
organization and a detailed planning effort is fully within the 
reach of most metropolitan police departments. 

Training help is being made available through academic insti- 
tutions and other organizations that specialize in operations re- 
search and systems analysis. Furthermore, the Safe Streets Act 
of 1968 provides federal assistance to cities and states in all 
aspects of law enforcement. Other federal agencies and private 
foundations have also begun to support research and development 
in specialized areas on a large scale. 

In conclusion, while most major American cities have begun 
moving to implement the lessons learned from recent disorders, 
much remains to be done. There can be no substitute for detailed 
long-range planning, too frequently bypassed under the pressure 
of immediate law enforcement needs. The knowledge needed to 
upgrade the kind of official response required is available. What 
is needed is a will to act and a will to provide needed resources. 

THE ROLE OF THE PRIVATE INDIVIDUAL 

In an emergency such as a serious riot, the regular police, fire, 
and related community services quickly become overtaxed. The 
civil government, primarily organized to respond to normal de- 
mands on its services, finds its available protective capabilities 
overwhelmed. The dangers to individual citizens and damage to 
business establishments can be greatly minimized by both private 
efforts and government-assisted programs to encourage certain 
minimum and practical self-protection measures designed to 
"harden the targets." Such precautions particularly apply to high- 
risk businesses which have been the principal targets of the 
rioters : i.e., liquor, hardware, appliance, food, and clothing stores. 

By installing available protective devices, individual establish- 
ments can with relatively little cost make it difficult for anyone to 
burn or burgle their premises, measures which will provide valu- 



326 Report of the Task Force on Law and Law Enforcement 

able protection against normal crime hazards as well. Solid-type 
barriers, for example, which roll down over store fronts to 
prevent unauthorized entry of persons or repel fire bombs, have 
long been a standard protective measure in France, Italy, and 
other foreign countries. 

A small inexpensive device, which screws into a light socket 
and can be wired to discharge a harmless but highly deterrent 
chemical (such as CS) if a window is broken or illegal entrance 
is made, is also available as a protective measure against looting. 
New types of shatterproof glass and glazing materials could 
also provide a higher level of security. 

The danger of arson can be greatly minimized by the installa- 
tion of a water sprinkler or fire suppression system. Like the pro- 
tective barrier, such fire protection would provide highly effective 
year-round security for the businessman. The cooperation of in- 
dustry and local government could make inexpensive suppression 
systems feasible for small enterprises. 

At the present time, small business establishments in high 
crime and ghetto areas are having trouble obtaining or retaining 
insurance. The installation of relatively inexpensive and effective 
protective systems which would serve to safeguard these busi- 
nesses against fire and burglary could prove a decisive factor in 
helping to solve the insurance problem for small businesses. 

THE PROBLEM OF MANPOWER AND 
EFFECTIVE RESPONSE 

Of the many civil disorder problems that remain unsolved, the 
most pressing is the inadequate number of trained riot control 
personnel. 

This manpower problem arises principally from the constitu- 
tional assignment of the police function to the states and the 
system of decentralized, autonomous local law enforcement agen- 
cies that has evolved in this country. Each city, in effect, must rely 
on its own limited resources in maintaining order and in preserv- 
ing the civil peace. 

This kind of problem, perhaps to the surprise of Americans, 
does not exist in other large countries. Unlike the United States, 
most foreign countries have national centralized police forces. 
They possess great manpower resources that enable them to 
create specialized riot control units which number in the thous- 
ands and are usually stationed in or near metropolitan areas. 
Also, large contingents are kept on standby or quick-alert basis 
for immediate dispatch in case of trouble. 

These units, in turn, are supported by large numbers of mili- 
tary troops who have been especially designated and trained for 
riot control and who can be employed without the inhibiting con- 



Official Responses to Mass Disorder 327 

stitutional restrictions, among others, which limit the use of 
Federal forces in this country. 

The effectiveness of these foreign forces is greatly enhanced 
by extensive specialized training in riot control. In many coun- 
tries this training includes hundreds of hours in riot control 
operations, tactics and equipment for all levels of personnel, as 
well as exercises which test the planning and efficiency of the riot 
control units. Periodic in-service training, as well as advanced 
courses, are given to both the men and to their commanders. 

Because of the quick availability of these large trained riot con- 
trol reserves, other countries can control civil disorders effec- 
tively. Nor can their success be attributed to their use of harsher 
tactics, as the experiences of the British "bobbies" testifies. 13 

The seriousness of the inadequate riot control reserves in this 
country was clearly demonstrated in the April 1968 disorders. In 
several of the states large demands for riot control personnel seri- 
ously depleted the effective strength of the National Guard. On its 
part, the Federal Government had to dispatch more than one- 
third of the combat troops out of its strategic reserve. If future 
disorders of a wider and more serious nature should develop, the 
problem of providing endangered communities with sufficient 
numbers of trained riot control manpower could become extremely 
critical. 

Needed riot control forces properly trained and equipped 
must be made available to provide effective support and assistance 
to any city in need of help, and these reserve forces must be found 
without creating a national police force, which runs contrary to 
American tradition and history. 

One way to create the necessary riot control reserve forces is to 
build on existing state police and highway patrol forces in the 
United States. The state government has the basic responsibility 
for maintaining order within the state and for assisting com- 
munities when domestic violence overwhelms local capabilities. 
Moreover, strengthening the state police forces and utilizing them 
as a riot control reserve would avoid the problems of idle waste 
and excessive aggressiveness inherent in a single-purpose riot 
control force. 

It would be appropriate and in the national interest for the 
Federal Government to assist and contribute to the creation of 
these additional state police forces. The needed personnel could be 
funded quickly and in a way consistent with established federal- 
state relationships, by following the precedent of the federal 
highway programs under which the Federal Government now 
provides billions of dollars annually to the states to construct 
interstate and state highways. 

This readily accesible uniformed force would enable the states 
to provide the trained manpower needed to back up local police 



328 Report of the Task Force on Law and Law Enforcement 

forces in a civil disorder, and the program could provide these 
patrolmen and their commanders with the specialized riot control 
training and equipment essential to their effectiveness as highly 
disciplined, coordinated riot control units. Support equipment 
might include air and ground transportation and the communica- 
tions equipment required in a disorder for the rapid mobilization 
and effective command and control of these quick-response 
reserves. 

Eligibility for Federal grants would require the assignment 
of these policemen to metropolitan areas to assure their ready 
availability for emergencies. The deployment and response capa- 
bilities of these state forces would be designed to enable the 
governor to dispatch sizeable, effective units of trained riot con- 
trol personnel within a matter of minutes to any city in trouble, 
with additional support increments following rapidly. The Na- 
tional Guard would still constitute an emergency reserve in the 
event these combined forces proved insufficient. 

At the present time, the Federal Government is spending some 
$4Vs> billion annually in grants to states to build highways. The 
same amount of money the Federal Government is now contribut- 
ing to build just one mile of highway in a metropolitan area could 
pay for the cost of 1,000 state policemen who would be available 
to protect that metropolitan area in the event of domestic violence. 

If ten percent of the Federal funds currently given the states 
for highway construction were, allocated for these special state 
police and were matched by the states it could create a riot 
control reserve of approximately 60,000 men, twice the amount of 
state police and highway patrolmen now available. Such state 
forces would ensure each state a sizeable riot control reserve force 
for every large city within its borders. 

On their part, the states themselves receive more than $6 billion 
annually from state highway-user revenues. Less than 10 percent 
of this state revenue, however, is now spent on police and highway 
safety programs. The use of a larger portion of these state high- 
way revenues to support the state costs of adding additional high- 
way patrol-riot control personnel would seem entirely justified for 
such a vital state responsibility. 

In addition to their protective function, these state forces 
would be performing needed daily services, protecting lives and 
preventing accidents on the metropolitan highways. 

The assignment of these police forces to patrol the metropoli- 
tan highway system would have the added benefit of freeing large 
numbers of local police who must now perform this function. The 
city of Los Angeles, for example, recently turned over the respon- 
sibiltiy for policing the arterial highways within the city limits 
to the California Highway Patrol, thereby making available large 



Official Responses to Mass Disorder 329 

numbers of Los Angeles officers for reassignment to local pro- 
tection and to crime control responsibilities. 

These new state forces could also serve as a riot control train- 
ing and information resource for all local and county police forces. 
Furthermore, they could serve as the nucleus needed to assist and 
strengthen local police departments in their regular police work 
in such areas as training, communications, records, laboratory 
and related technical, special and supportive police services. Such 
a role would enable the individual states to help fulfill their obli- 
gations to provide local communities with the support they need 
to combat local crime and to preserve the peace. 

The creation of such a force in a particular locality depends 
upon many factors. No single law enforcement concept will prop- 
erly serve all areas. Nevertheless, given appropriate latitude to 
encompass the many control problems in our nation, state police 
and highway patrols so strengthened to cope with civil disorders, 
would be a major step towards expanding the manpower capa- 
bilities of our metropolitan police forces. 

PUBLIC SAFETY RADIO COMMUNICATION 

A principal command and control problem found by the Civil 
Disorders Commission was the lack of emergency radio frequen- 
cies available to police and fire departments during civil dis- 
orders. 14 

The Commission also found the coordination between neighbor- 
ing police jurisdictions, fire departments and the National Guard 
extremely difficult because of the lack of area-wide channels. 
Incompatible frequencies and equipment prevented effective use 
of men and equipment. To help relieve already overtaxed radio 
frequencies, the Commission recommended that the Federal 
Communication Commission "make sufficient frequencies avail- 
able to police and related public safety services to meet the demon- 
strated need for riot control and other emergency use/' 

Innovations in land mobile radio technology, particularly in 
the area of public safety communications, will demand increased 
frequency space. The Joint Technical Advisory Committee 
stated : 

Apart from emergencies, the upward trend in crime, the 
mobility of criminals, and the increasing concentration of 
the population in urban areas make it essential to increase 
the effectiveness of police communications. The tools for this 
are already available, such as personal radio equipment to 
provide continuous contact with each policeman, and visual 
printout in patrol cars to increase accuracy and speed in re- 
ceiving information, including that from computerized files. 



330 Report of the Task Force on Law and Law Enforcement 

To implement these tools fully, would again require addi- 
tional channels. 15 

Already in the marketplace are such recently developed com- 
munications tools as the mobile teleprinter which will enable 
police vehicles to receive printed messages over the air. As police 
departments become integrated into statewide, computerized, 
information systems, police use the radio channel between the 
vehicle and the control center for direct access to data stored 
in the memory files of the computer. Information regarding miss- 
ing persons and automobile or firearm registration is obtained by 
interrogation of the computer through the two-way radio control 
station. The control station relays the computer's response to the 
vehicle with the information printed out on the teleprinter. 

To provide additional radio channels, on June 30, 1968, the 
Federal Communications Commission reduced the channel width 
of land mobile radio channels in the 450-470-MHz band to 25 
KHz, and made 20 of the newly split channels available for assign- 
ment to the police radio services. In many instances however, a 
majority of the 20 channels were applied for by a single metro- 
politan police department, leaving only a few channels to be 
shared by a vast number of suburban police departments, county 
sheriffs and state police networks. 

CONCLUSION 

The recent wave of urban disorders found law enforcement 
agencies ill-trained, ill-equipped and ill-prepared to deal with 
them. The Civil Disorders Commission noted these deficiencies 
and proposed measures to upgrade the levels of preparedness and 
response of these agencies. Since the Report of that Commission, 
significant but uneven steps have been taken to implement those 
recommendations. 

Army and National Guard units now stand trained and ready to 
deal with domestic upheavals. This rapid progress has been due 
largely to effective staff organization, which proved capable of 
long-range, detailed planning. The response of local law enforce- 
ment agencies, however, has lagged. Two problems adequate 
numbers of trained manpower and adequate communications 
have yet to be solved. 



REFERENCES 

1. James Q. Wilson, Varieties of Police Behavior (Cambridge, Mass. 
Harvard University Press, 1968), at 80. 

2. National Advisory Commission on Civil Disorders, Report (New York: 
Bantam Books, 1968). (Hereinafter cited as Kerner Report.) 



Official Responses to Mass Disorder 331 

3. Id., Supplement on Control of Disorder, at 490. 

4. Urban America, Inc. and The Urban Coalition, One Year Later, An 
Assessment of the Nation's Response to the Crisis Described by the 
National Advisory Commission on Civil Disorders (Washington, D.C.: 
Urban America, Inc. and The Urban Coalition, 1969), sec. II, at a, 4, 
and 5. 

5. According to Mr. Paul G. Bower, Special Assistant to the Deputy 
Attorney General, the definitions used by the Justice Department were 
less stringent than those used by the Civil Disorders Commission. "If 
the Riot Commission definitions were applied to the 1968 disorders, we 
would probably find only one or two disorders Cleveland, Miami that 
would have been construed major by Commission standards, as com- 
pared to eight major disorders in the summer of 1967. The apparent 
increase in ... minor disorders is probably due to better reporting 
rather than an actual increase in violence." Missouri Attorney Gen- 
eral's Seminar. Lake of Ozarks, Mo., Oct. 4, 1968. 

6. "Report by Attorney General Ramsey Clark," a statement issued by 
the Office of the U.S. Attorney General, Washington, D.C., Oct. 3, 1968. 

7. Statement of General Ralph E. Haines, Jr., then Vice Chief of Staff, 
United States Army, before the 89th Conference of the National Guard 
Association of the United States, Transcript of Proceedings 91 (Sept. 
1967). 

8. The National Guard Bureau, Report on the Final Evaluation of the 
New Jersey Test Program (1968). 

9. For example, Gen. James Woolnough, Commanding General, U.S. 
Continental Army Command, in a speech before the 90th General 
Conference of the National Guard Association, stated that he recog- 
nized that the National Guard's 1968 field training for their federal 
responsibiltiies had been less than an unqualified success. This he 
felt was a result of "the disruptions to orderly planning which occurred 
during the year." 

10. As of the publication of this report, the single most authoritative source 
is an International Association of Chiefs of Police Publication en- 
titled Guidelines for Civil Disorder and Mobilization Planning (1968). 
The IACP has also compiled publications entitled Model Civil Dis- 
turbance Control Plan (1968) ; and Civil Disorders After-Action Report 
(Mar .-Apr. 1968). See also Civil Disturbances and Disasters Depart- 
ment of the Army Field Manual FM 19-15 (Mar. 1968) ; Operations 
Report: Lessons Learned Report 5-67, Civil Disorders Task Force 
Detroit, Commanding General, United States 5th Army; Federal 
Bureau of Investigation, Prevention and Control of Mobs and Riots 
(1967) ; D. Farmer, Civil Disorder Control: A Planning Program of 
Municipal Coordination and Cooperation (Public Administration Serv- 
ice, Chicago, 1968) ; Lesson Plan, Senior Officer Civil Disturbance 
Orientation Course, Fort Gordon, Ga. 

11. International Association of Chiefs of Police, Civil Disorders After 
Action Report (Mar .-Apr., 1968). 

12. Atlanta, Berkeley, Boston, Chicago, Cleveland, Dallas, Denver, Detroit, 
Miami, New York, Oakland, Philadelphia, St. Louis, San Diego, San 
Francisco, and Washington, D.C. 

13. The following is taken from an article written in Feb. 1969 by David 
Lancashire for the Associated Press entitled "The Bobbies' Way of 
Handling Crowds": 

Shouting slogans and waving anti- Vietnam placards, the demon- 
strators smashed against the police line and tried to fight their way 
through. The placards waved like sabres and police helmets flew 
in the air. 



332 Report of the Task Force on Law and Law Enforcement 

The policeman in charge a sergeant in a sweatshirt and tennis 
shoes looked delighted. "That's it demonstrators," he shouted, 
"but try again, and harder." 

The clash was at the London Police Recruit Training School, 
where British bobbies study how to control riots like the explosive 
demonstrations in Paris, Chicago, Berlin and London. 

London police do it one way, and one way only: They link arms 
and, by sheer numbers, hold back the crowd. The crowd in this 
case was a cluster of police in plain clothes, providing practice 
for fellow cadets in the linked-arms techniques. 

London's men in blue have no tear gas, no water cannons and 
no guns. 

"We have no riot helmets or visors, either," says chief instructor 
James Hargadon, a 40-year-old Scot who handles the training for 
the capital's 20,000 man force. 

"We don't think they are necessary, and if we did put on riot 
helmets it might work the crowd up a bit, cause a spot of trouble." 

British police, ever polite, refuse to comment on the violence in 
Chicago or Paris, but they tend to look smug when they are asked 
about it. 

"We wouldn't consider such methods here," says Hargadon. 

"We treat crowd control like cricket, or a soccer match. We try 
to keep them from scoring." 

When the last big demonstration erupted in London in October, 
more than 30,000 protestors marched through the streets. Scotland 
Yard assigned 8846 police to control the mobs. The forecasts pre- 
dicted trouble but the "treat-'em-gently" tactics paid off. 

When protestors threw coins at one cop, he laughed and asked 
for bigger ones. When another bobby was hit by a flying pear, he 
picked it up and ate it. At the end of the day there were 47 civilian 
casualties, none of them seriously hurt. 

And demonstrators and police who had 74 injuries sang a 
chorus of Auld Lang Syne together outside the undamaged Ameri- 
can Embassy, which the extremists had threatened to bomb. 

14. Kerner Report, supra note 2, at 486-487. 

15. Joint Technical Advisory Committee, Spectrum Engineering The Key 
to Progress, a report on technical policies and procedures recommended 
for increased spectrum utilization (New York: Institute of Electrical 
and Electronics Engineers, Mar. 1968), at 12. 



CHAPTER 16 

OFFICIAL RESPONSES TO MASS DISORDERS 

II: THE CIRCUIT OF VIOLENCE- 

A TALE OF TWO CITIES* 

"Force empowers its own adversaries. It raises up 
its own opposition. It engenders its own destruc- 
tion." i 



While the statistics on civil disorders compiled by the Depart- 
ment of Justice during the past year lend validity to the belief 
that the earlier rash of riots may have subsided, new dangers 
and control problems are developing to challenge the police and 
the communities. They are manifested in terrorist attacks by 
black extremists on policemen, such as the ambush and murders 
in Cleveland, Ohio; and conversely, in the vigilante activity of 
white extremists in a number of American communities. Con- 
currently, we are witnessing the emergence of extremists within 
the uniformed police who themselves are resorting to lawless- 
ness, such as the off-duty police officers who physically assaulted 
a group of Black Panthers in a New York City Courthouse, the 
Oakland policeman who fired into a building housing a militant 
organization, and the Detroit policeman who, following the 
killing of a white policeman on the streets of Detroit, fired more 
than 100 bullets into a church in which there were more than 
140 Negro men, women and children. 

Such incidents and the increasing bitterness and apprehension 
they provoke on both sides could, if unchecked, create the poten- 
tial for a new, and in many ways, far more dangerous type of 
violence for this country. For we are witnessing an increasing 
polarization in attitudes which breeds a citizenry incapable of 
demanding the kind of official response appropriate to the prob- 
lems which underlie such outbreaks. Largely as a result, those 
minorities which do not have the power to mold official response 
are becoming increasingly alienated from the larger community. 

The dynamics of confrontation between large groups of people 



* This chapter was prepared by Joseph R. Sahid. 

333 



334 Report of the Task Force on Law and Law Enforcement 

and those in authority work in interesting ways. A polarization 
in attitudes leads to escalation of the confrontation, breeding 
more intense polarization which justifies further escalation in 
the minds of the participants and the larger public. An exam- 
ple of how this circular and cumulative causation phenomenon 
has produced violent clashes in our nation's history is the 
American labor movement, a subject more fully developed by 
the History Task Force of this Commission. Another example 
is the comparison of the official handling of the protest activities 
which occurred in Chicago during the 1968 Democratic Con- 
vention and the handling of similar protest activities in Wash- 
ington, B.C., during the 1969 Presidential Inauguration. 

The concepts discussed in this chapter are neither novel nor 
overly complex. In one sense, they are the most fundamental 
principles of crowd control, understood by observers at least as 
ancient as Machiavelli. But fundamentals have a way of being 
forgotten when emotional issues cloud man's rationality. For 
that reason, we have attempted to re-state those fundamentals 
using contemporary illustrations to reduce the abstractions to 
meaningful realities. 

THE DYNAMICS OF POLARIZATION 

To many, the answer to violent unrest seems simple. When 
blacks riot, when students demonstrate, when groups protest- 
ing government policies organize potentially disruptive marches, 
the government should retaliate with massive suppressive force. 
Only by supporting law enforcement agencies and reducing 
procedural obstacles to their efficient operation, they argue, 
can order be restored. 

The strength for this argument in our country was revealed 
by the National Violence Commission Survey. Seventy-eight 
percent of the people polled agreed with the statement, "Some 
people don't understand anything but force." Fifty-six percent 
agreed that "Any man who insults a policeman has no complaint 
if he gets roughed up in return." Only 55 percent agreed with 
the statement, "The police are wrong to beat up unarmed pro- 
testors, even when these people are rude and call them names." 
And 51 percent agreed that, "Justice may have been a little 
rough-and-ready in the days of the Old West, but things worked 
better than they do today with all the legal red tape." 

While rough-and-ready justice may be appealing, there is 
little evidence that more repressive police operations will sig- 
nificantly decrease the level of violence in the country. Swift 
and massive commitment of prudent and well trained law en- 
forcement personnel can usually extinguish a civil disorder in 
its incipiency, but the call for "law and order" does not stop 



A Tale of Two Cities 335 

here. Citizens have asked for something more that the police 
be "unleashed" to deal with demonstrators and rioters as they 
see fit, regardless of the long-run consequences of their actions. 
At least two-thirds of white Americans believe that black fire- 
bombers and looters should simply be shot down in the streets. 2 

This view has become part of the folklore of the day, as an 
examination of contemporary cartoons and comic strips, par- 
ticularly Dick Tracy, Little Orphan Annie, and, in recent years, 
Li'l Abner, will demonstrate. At a most unpropitious time, the 
day after the assassination of Senator Robert F. Kennedy, the 
author of Dick Tracy concluded the episode on the following 
philosophical note: "Violence is golden, when it's used to put 
down evil." 3 

Policemen, themselves representative of the larger commu- 
nity from which the cries for "law and order" emerge, have 
found it increasingly difficult to close their ears to the public 
clamor. Sensing correctly that an ever increasing percentage 
of the population is willing to tolerate the use of any amount 
of suppressive force to quell the clamor about them, some police- 
men have fulfilled the wishes of these people by engaging in 
terroristic attacks upon rioters and demonstrators in an unruly 
and undisciplined use of brute force. Our Study Teams report- 
ing on the disorders during the 1968 Democratic and Republican 
Conventions and during the aftermath of the shootout in Cleve- 
land, Ohio, July 23-28, 1968 (as well as the numerous other 
instances referred to by our Task Force on the Violent Aspects 
of Protest and Confrontation) have documented beyond doubt 
incidents of unlawfully violent and otherwise suppressive con- 
duct engaged in by numbers of policemen. 

Reliance upon undisciplined law enforcement is self-defeat- 
ing, however, since it adds to the magnitude and intensity ol" 
disorders in progres and lays the groundwork for future and 
more violent confrontation. Rather than succeeding in its in- 
tended goal, which is to intimidate law breakers from further 
violation, it merely succeeds in inflaming passions further and 
drawing innocent bystanders into the web of violence. Once 
this happens, those in authority are left with no alternative: 
they must respond with even greater force to deal with increas- 
ingly larger and angrier crowds of participants until a bloody 
victory (if possible) is achieved. Professor Ted Gurr has force- 
fully expressed this phenomenon : 

The most fundamental human response to force is coun- 
terforce. Force threatens and angers men, especially if 
they believe it to be illicit or unjust. Threatened, they try 
to defend themselves. Angered they want to retaliate. . . . 
The presumption justifying counterforce is that it deters: 
the greater a regime's capacity for force and the more 



336 Report of the Task Force on Law and Law Enforcement 

severe the sanctions it imposes on dissidents, the less vio- 
lence they will do. This assumption is in many circum- 
stances a self-defeating fallacy. If a regime responds to 
the threat or use of force with greater force, its effects are 
likely to be identical with the effects that dictated the regime 
response: dissidents will resort to greater force. 4 

Several factors contribute to the violence-escalating tendency 
inherent in the use of sizeable police forces in situations of po- 
tential or actual disorder. Many observers of police-citizen 
interaction have noted the heightened tension and crisis atmos- 
phere generated in an area where large and powerful groups 
of law enforcement officers are deployed. 5 This kind of atmos- 
phere was evident on the Columbia University campus during 
the disorders which occurred during the Spring of 1968. Not 
long after the dissident student groups succeeded in occupying 
several of Columbia's major buildings and offices, the university 
administration decided to mobilize a large complement of police 
officers at various locations on the campus. Once the police 
presence was apparent, a tense, crisis-like atmosphere pervaded 
the campus, even though the police took no action for several 
days afterward. Students erected more formidable barriers 
within the occupied buildings in the hope of forestalling what 
seemed like an imminent and massive police effort to dislodge 
the students. 6 

A similar crisis atmosphere was evident prior to the Demo- 
cratic National Convention. Local officials in Chicago began 
announcing weeks and even months before the Convention that 
large-scale mobilization of police, National Guard and Army 
troops would be undertaken to prepare for any outbreak of vio- 
lence that might occur. Rarely a day passed without some aspect 
of the mobilization receiving widespread publicity. Fences were 
installed, barricades were erected and streets were closed off. 
To some, the city of Chicago assumed the characteristics of an 
armed camp preparing for war. The extensive and well-publi- 
cized preparation coupled with the massive buildup of police, 
troops and equipment could not fail to create an atmosphere 
suggesting the ultimate inevitability of some mass disorder. 7 
As another example, the Miami police department's importation 
of police dogs and shotguns into the Miami ghetto was credited 
by our study team investigating the disorders that engulfed 
that city in 1968 with exacerbating the tensions that generated 
the disorder. 

Perhaps the most serious danger resulting from placing pri- 
mary reliance on poorly restrained police forces to prevent and 
control outbreaks of group disorder is the adverse effect such 
reliance has on the attitudes of individuals and groups in our 
society. This effect on attitudes manifests itself in two basically 



A Tale of Two Cities 337 

different but equally deleterious ways intimidation and polari- 
zation. 

In the crisis-like atmosphere generated by the announced 
availability or actual deployment of a large police force which 
has been mobilized to cope with potential group disorder, there 
is a strong possibility that the average, law-abiding citizen will 
be intimidated from participating in the group activity. Such 
intimidation has a "chilling" effect on the exercise of First 
Amendment rights in the areas of political, war, or social pro- 
test. 

Any individual who contemplates engaging in a group dem- 
onstration of dissent or protest, regardless of how peaceful and 
law-abiding he might be, must of necessity consider the possi- 
bility that he might become involved in some type of group 
disorder. When police forces are massed for such a demonstra- 
tion and the public made well aware of the preparations, the 
possibility of disorder becomes magnified. Although the most 
dedicated and least fearful (and perhaps the most violence 
prone) may decide to engage in the protest despite the con- 
sequence, many others of a more peaceable disposition may 
decide to forego participatig in an organized protest. A kind 
of Gresham's Law operates, leaving the protest movement in 
the hands of the more extreme participants. 

The massive force martialed and flaunted prior to the Demo- 
cratic National Convention no doubt discouraged a multitude 
of respectable, law-abiding citizens from assembling en masse 
to express their disagreement with the war in Vietnam and to 
influence the convention on other matters of critical public im- 
portance. And there are indications suggesting that the mobili- 
zation of forces was dictated by a desire on the part of the 
public officials to hold down the number of people engaging in 
such protests. 8 While it is of course impossible to prove the 
subjective motivations of those officials, the effect of their 
actions was clear sizeable numbers of people were intimidated 
into foregoing their constitutional rights. The gravity of that 
occurrence should not be underestimated in a society founded 
on the premise that all people have the right to speak freely 
and assemble peacefully. 

"All police are sadistic and brutal." "All demonstrators are 
Communists and traitors." Opposing views such as these which 
are widely held and vigorously espoused by diverse segments of 
the public exemplify the phenomenon of attitude polarization. 
Polarization occurs both during and after disorders and is mani- 
fested in the attitudes of those involved in the disorder as well 
as those not involved. 

The origins of attitude polarization can be traced to the diffi- 
culty of coordinating and controlling the actions of a large police 



338 Report of the Task Force on Law and Law Enforcement 

force deployed during a group disorder. Because of this diffi- 
culty, it is often impossible to pinpoint and take remedial action 
against those individual policemen who have engaged in indis- 
criminate or illegal behavior. Much the same problem is evident 
when individual members of a protest group engage in provoca- 
tive or illegal behavior. This inability promptly to identify and 
hold responsible those who have engaged in illegal activities 
generates widespread feelings of bitterness and animosity in 
one group towards the other. Generalities replace specifics, pas- 
sion replaces reason, dogmatism replaces analysis. Thus, the 
protestors tend to view all police as brutal, intemperate, and 
unsympathetic because they have seen some police act this way. 
And the police tend to view all protestors as communists or 
trouble-makers because some protestors have engaged in pro- 
vocative acts. The escalation of tactics leads to broader and 
more intense polarization which in turn justifies further escala- 
tion. To phrase it simply, "You hit me so I will hit you back." 

Two recent surveys of public attitudes following the disturb- 
ances at Columbia University in the spring of 1968 graphically 
illustrate the extent to which attitudes can polarize after a large 
police force is employed to control a group disorder. 9 One poll, 
conducted for the Neiv York Times by Public Opinion Surveys, 
Inc., of Princeton, N.J., surveyed 508 adults living in the greater 
New York metropolitan area. 10 The other poll, conducted by 
Allen H. Barton of the Bureau of Applied Social Research at 
Columbia University, polled the entire university faculty and 
one-fifth of the student body. 11 On the issue of the propriety of 
the university's decision to call in the police, a sharp split in 
attitude was apparent between the metropolitan area residents, 
on the one hand, and the students and faculty on the other. 
Whereas 83 percent of the metropolitan area residents favored 
the decision to call in the police, 74 percent of Columbia stu- 
dents favored using the police only under limited conditions or 
not at all. Opposition to the use of police was most intense 
among those most intimately associated with the disturbance, 
the students. Support for the use of police was most intense 
among those who were not college educated, and those over 
forty years of age. 

Once the attitudes of the police and the protest group begin 
to diverge toward opposing extremes, the ability of both sides 
to join in either preventing a potential disorder or curbing an 
existing disorder is greatly impaired. Because of the growing 
rigidity and polarity in the attitudes held by each group toward 
the other, communication between the police and the protestors, 
if it occurs at all, will be carried on in an atmosphere of mutual 
distrust and suspicion. In such an atmosphere, discussions aimed 
at achieving cooperation to insure that future group protests 



A Tale of Two Cities 339 

are conducted in an orderly fashion have little chance to succeed. 
And in the midst of a disorder, discussions aimed at mutual 
efforts to bring the disorder to an end become virtually impos- 
sible. 

The depth and intensity of the polarization in the attitudes 
of the protestors and the police depends on the length and se- 
verity of their confrontation. If the confrontation is severe and 
the polarization intense, the original objective of the protest 
groups becomes submerged, being replaced by demands and 
complaints concerning police action. Although the transforma- 
tion of objectives usually finds initial expression within the 
protest groups, the emergent issue concerning police action 
begins to attract widespread public attention. Within a short 
period of time, the polarization between the attitudes of the 
protest groups and the police is evident in the attitudes of pro- 
protest and pro-police segments of the public as a whole. Wide- 
spread coverage of the issue by the various communication 
media draws more and more people into the controversy. At 
some stage, public officials take sides on the propriety of police 
conduct, impelled to do so because of the growing public clamor. 
And the additional facts which are disseminated by means of 
the communications media, investigatory bodies, white papers 
and the like can often lend support to the divergent public atti- 
tudes, add to the vigor with which the views are held, and 
further intensify the preexisting polarization. 

The consequences of this polarization are exhibited in various 
forms. In a recent trial of three Chicago policemen charged 
with unlawfully beating a reporter at the Democratic National 
Convention, for example, the jury acquitted the policemen in the 
face of overwhelming evidence of the officers' guilt. The presi- 
dent of the Chicago Fraternal Order of Police probably reflected 
the mood of the community and the jury when he commented: 

We are absolutely elated over the not guilty verdict. It 
proves beyond the shadow of a doubt that the lady of 
justice is not blindfolded and that anarchy will not prevail 
in our society. 12 

Thus, the specter of "anarchy" proved more persuasive than 
the individual guilt or innocence of the defendants. 

When attitude polarization becomes reflected in the thinking 
of large segments of people who are more or less unaffected by 
a given disorder, more serious, long-range consequences arise. 
With each succeeding group disorder, growing numbers of the 
public will appear to be more vigorously in favor of resorting 
to force as a solution to such outbreaks. As a consequence, with 
each succeeding disorder, public officials will meet with less re- 
sistance in adopting that solution. Those public officials who 



340 Report of the Task Force on Law and Law Enforcement 

believe attacking the causes and tensions which precipitate dis- 
orders to be a more fruitful approach will be compelled to curtail 
or abandon their efforts in the face of the public outcry for 
swift and decisive police action. Gradually, a resort to over- 
whelming police force will become an automatic response that 
will further widen the gulf in attitudes, leave unresolved the 
causes of the disorder, and increase the likelihood of future 
disorders. 

An even more alarming consequence which results from a 
widespread polarization of attitudes is the growing isolation of 
those who have either directly engaged in group disorders or 
expressed sympathy with the goals of the participants. This 
isolation develops in two stages, both of which are attributable 
to the strained communications between the polarized groups, 
a strain which becomes more pronounced as the divergence in 
attitudes becomes more extreme. Initially, isolation is forced 
on protestors and their sympathizers by the larger public. 
Although those who are intimately associated with the disorders 
are most eager and best able to identify the causes of unrest and 
to propose creative, remedial measures, the larger public is un- 
willing to listen, viewing the protestors as a threat to an orderly 
and stable society. The increasing hostility of the general public 
drives the protestors and their sympathizers to the second stage 
of isolation. This stage is marked by the protest group's re- 
jection of the existing political and social system as a vehicle 
to effect change. When isolation develops to this extent, the 
attendant polarization and hostility may become so intense as 
to be irreconcilable. 

Attitude polarization leading to an escalation of violence is 
not difficult to understand. Supported by psychological teach- 
ings, 13 the lesson seems clear force merely produces counter- 
fo^ce. 

The polarizing effect of suppressive force is not new to this 
country. A review of the labor movement provides an out- 
standing example. 

CASE STUDY I: THE LABOR MOVEMENT 

The American labor force did not begin to view itself as a 
special interest group or even as a collective entity until the 
Industrial Revolution compelled a sharper division between cap- 
ital and labor. Economic expansion and technological advances 
gave rise to the giant industrial corporation whose manage- 
ment was increasingly remote and unresponsive to employee 
needs. Marxist ideology, if it did not abet this process, sharpened 
an awareness of it. 

As the gap between labor and management widened, skilled 



A Tale of Two Cities 341 

workers and craftsmen in several industries adopted union forms 
of organization to voice their requests more audibly. In the 
first year following the Civil War, the leaders of several trade 
unions and craft associations met in Baltimore to form the 
National Labor Union, the first attempt to organize labor on a 
scale comparable to that of industrial management. 

The demands of the NLU were moderate: currency reform, 
job security, formation of cooperatives, and most of all an eight- 
hour work day. The tactics employed were peaceful and polit- 
ical : legislative lobbying and campaigning for the enactment of 
new laws. 

As an instrument of political reform, the NLU proved in- 
effective. Its campaigning yielded few results, either in electing 
labor candidates to office or in securing legislation. The NLU 
collapsed in the early 1870s, and in its place arose the Knights 
of Labor, the prototype of the modern national labor organiza- 
tion. 

The Knights inherited the NLU's political reformist tenden- 
cies, but put greater emphasis on the strike and on collective 
bargaining as a means of pressing its demands. At first these 
tactics were effective. A series of successful strikes won wage 
increases and better working conditions, and these accomplish- 
ments in turn caused the Knights of Labor to increase its mem- 
bership from about 100,000 in 1881 to a peak of 700,000 in 1885. 

These successful strikes, the rapid expansion of organized 
labor, and increasing social unrest convinced industry that labor 
unionism represented a dangerous revolutionary movement. In 
support of this view, industry could cite a number of "revolts" 
and "rebellions" among immigrant laborers who had spon- 
taneously rioted on several occasions to protest starvation wages 
and intolerable working conditions. It could cite the Molly 
Maguires, a secret society of Irish immigrants who enforced their 
demands for better wages and safer mines by terrorism in the 
coalfields of Pennsylvania. In addition, the continuing immigra- 
tion from Europe included a small but vociferous number of 
anarchists, socialists, and other radicals who preached class 
struggle and "propaganda of the deed." 

While the organized labor movement was generally peaceful, 
even timid, and sought to divorce itself from radical ideology, 
industry viewed it as a threat not only to property interests but 
to management's dominant position in the national economy. 
The response to this threat was a campaign of harsh suppres- 
sion, both tactical and strategic. Labor organizers were threat- 
ened, beaten, or killed, and labor meetings were forcibly dis- 
rupted by company guards and "goons." Strikes were broken 
by professional strike-breaking agencies, with the aid of local 
and state police. Resistance from strikers brought massive 



342 Report of the Task Force on Law and Law Enforcement 

reprisals, often from troops or state militia called in to protect 
property and restore order. 

The Knights of Labor, ineffectually led and structurally weak, 
quickly succumbed to such pressures. But this oppression had 
the effect of imbuing the movement with greater determination. 
After the 1880's, labor leaders abandoned efforts to secure po- 
litical reform, and turned to the strike as a principle instrument 
for pressing their demands the foremost of which was the right 
of labor to organize and bargain collectively. 

In itself, the strike was a nonviolent instrument of change. 
It frequently led to violence, however, the moment guards or 
police attempted to disperse picket lines or escort strike-breakers 
into the idle factories. Where industrialists were able to employ 
sufficient force to break a strike completely, the jobless strikers 
sometimes turned to offensive violence arming themselves and 
laying siege to mines, factories, or the barracks of the guards, 
or engaging in systematic terrorism that become long and 
bloody "wars." 

In almost every instance, labor violence stemmed directly 
from the breaking of a strike or the suppression of union ac- 
tivities. Sometimes it was sporadic and limited. In some cases 
it was adopted as policy by particular unions or radical labor 
groups on the grounds that lawful tactics were ineffective. No 
national labor organization not even the militant and radical 
IWW advocated the use of terrorism, and most deplored it. 
Nevertheless, violence remained the hallmark of the American 
labor movement from the 1870's through the 1930's. It did not 
diminish to its present inconsequential level until the late 1930's, 
when enforcement of the National Labor Relations Act of 1935 
finally secured for labor the right to organize and bargain col- 
lectively, and to employ the strike as an effective alternative to 
violence. 

The resort to force appears to occur in any sustained move- 
ment that fails to make steady, measureable progress toward 
its goals. It occurs less frequently as rational strategy for 
change, however, than as a gesture of protest or as an expres- 
sion of frustration. It appears to find acceptance only when 
suppression precludes other forms of expression or when other 
forms of expression appear to produce no meaningful response 
or no concrete results. 

These processes seem to be operating both on university 
campuses and in the streets in connection with student protest 
groups and the anti-war movement generally. After several 
years of peaceful protest and demonstration, often in the face 
of considerable harassment, the more militant groups have 
evolved the strategy of "confrontation politics" designed to pro- 
voke an unresponsive "establishment" into acts of brutality and 



A Tale of Two Cities 343 

suppression that dramatize the issues. Many officials have been 
unable to deal effectively with this tactic when it has been em- 
ployed on the streets and campuses of our nation. The result 
has been an increase in the level and intensity of violence. 

Two cities Washington and Chicago each recently experi- 
enced two major demonstrations. In Chicago, anti-war activities 
occurred on April 27, 1968, and at the Democratic National 
Convention in August. The March on the Pentagon in October 
1967 and the counter-inaugural activities in January 1969 oc- 
cupied Washington authorities. These demonstrations were or- 
ganized by many of the same groups and attended by many 
of the same people. The Convention and the counter-inaugural 
activities involved about the same number of protestors and 
centered around major national events. 

Yet the results of these events were markedly different. In 
Chicago, large-scale violence marred both activities. The vio- 
lence in Washington, on the other hand, was minimal. The 
almost laboratory-like conditions afforded by the Democratic 
Convention and Inaugural protest activities prompted us to ex- 
amine these two demonstrations in detail. We have concluded 
that the amount of violence that occurred during these demon- 
strations was directly related to the type of official response that 
greeted them. More specifically, repressive measures proved 
self-defeating: when officials decided to "get tough," choas 
rather than order resulted. 

CASE STUDY II: CHICAGO AND WASHINGTON 
A TALE OF TWO CITIES 

(The following account is based primarily on reports pre- 
pared for the Commission by the Chicago Convention and 
the Washington Counter-Inaugural Study Teams. 

The report on the disorders at the Democratic Conven- 
vention prepared for this Commission by Daniel Walker, 
especially the phrase "police riot," has been greeted by con- 
troversy. We believe that critics have misunderstood the 
significance of this phrase. It was expressly used in the 
report only to describe the blatant misconduct and violence 
by small bands of roving policemen in the parks and streets 
of the city's north side on Sunday and Monday nights of 
convention week. See Rights in Conflict at ix. It was not 
used to describe the handling of the large crowds on the 
climactic night of the Convention, which is described else- 
where in the report. Unless this distinction is understood 
the lesson of that report may go unnoticed.) 

The National Mobilization Committee to End the War in Viet- 
nam (MOBE) served as the primary organizing force which 



344 Report of the Task Force on Law and Law Enforcement 

brought together demonstrators for the activities both in Chi- 
cago and in Washington. MOBE served as a loose coalition of 
various local and national antiwar groups which, although au- 
tonomous, looked to MOBE officials to secure permits and make 
other logistic arrangements necessary to the success of a mass 
demonstration. 

A subsidiary role, although intensively publicized by the mass 
media, was played by groups variously called "Hippies" and 
"Yippies." Only peripherally interested in protesting the na- 
tional events which called forth their participation, thev desired 
to use both occasions to publicize their "alternative life style." 
Their "Festivals of Life" were designed to show the nation's 
youth that the "underground" was more than a myth. 

Most participants did not desire confrontation in any form. 
Many had come to protest peacefully their opposition to certain 
current American policies, foremost of which was the War in 
Vietnam. Others had come to participate in the festivities that 
were expected, to make new friends, to hear the scheduled speak- 
ers and entertainers, and generally to take part in the social 
event that was expected. 

Scattered throughout both these groupings of participants 
were those who desired "confrontation" with the authorities. 
Some believed that confrontation would occur without any un- 
lawful or disruptive conduct on their own part, that their simple 
presence would be enough to goad the authorities into attempt- 
ing to suppress their right to dissent peacefully. 

Others intended to provoke confrontation if necessary by ex- 
citing policemen and officials by their conduct. This last group 
was indeed small. No more than 100-200 people were com- 
mitted to this philosophy at any time during either event. 

Valuable insight into the personalities of the demonstrators 
has been provided by Dr. Paul R. Miller, Assistant Professor 
of Neurology and Psychiatry at Northwestern University Med- 
ical School, 14 who polled those arrested during the Convention 
disorders by means of questionnaires and interviews. His con- 
clusions contrast sharply with descriptions of the demonstra- 
tors given by the Chicago officials : 

The "average" demonstrator was from Chicago or a state 
adjacent to Illinois, a white male, 21 years old, who had 
nearly completed his college education. His social class 
origins were upper-middle or upper. Father was college 
educated and was either a professional or a business execu- 
tive. Mother had attended college without graduating and 
was a housewife. The demonstrator was headed toward a 
career in a service profession (teacher, clinical physician 
or psychologist, social worker, minister). . . . 

Social and Political Orientations . . . were sharply polar- 



A Tale of Two Cities 345 

ized. Almost unanimous support was given to the peace 
movement (99 percent) and draft resistance (93 percent). 
. . . Their closest political identity was with the "new Left" 
(83 percent), a concept which was concretized most closely 
in the person of Eugene McCarthy (supported by 66 per- 
cent). . . . 

The number who were for "communism" (18 percent) 
and "anarchism" (34 percent) requires explanation. . . . 

Certainly the usual American vision of a heavily bearded 
wild-eyed anarchist carrying a bomb with a lighted fuse is 
totally out of date with the demonstrators' concept. In- 
stead, an anarchist is a person who opposes on principle the 
established institutions of American society and has dropped 
out of participation in most or all of them. Thus almost 
all hippies are anarchists. 

In regard to communists, one responder said that "quali- 
fied National SDS calls themselves 'revolutionary commu- 
nists.' I believe this concept of communism is beyond most 
elected officials." Again the stereotyped American vision 
of a group is out of touch with current concepts among 
youths, who view communism as a social action movement 
to change capitalism to state socialism, by revolution if 
necessary, violent if necesary. Most youths despise Russian 
communism and disdain the American communist party. . . . 
[46 percent said they were against and 35 percent said they 
were indifferent towards communism]. 15 

Eighty percent denied [Mayor] Daley's contention that 
the demonstrators were taken over by deviant groups. . . . 

Most (73 percent) of the arrested demonstrators had 
never been arrested before. Of the 27 percent who had, two- 
thirds had been in connection with civil disobedience. . . . 

The group attitude toward nonviolence is sharply di- 
vided: half (49 percent) believe in it as a universally appli- 
cable principle, one-fourth (27 percent) deny it, and another 
one-fourth (24 percent) accept it under some conditions, 
such as practicing it until one is violently attacked (and 
then defending oneself). Others said that they accepted it 
for themselves but would not insist that it be universally 
applied to others. . . . 

Perhaps if the question on nonviolence had been asked 
before the convention, a higher proportion would have 
answered yes. Thus: "Chicago was the first demonstration 
I participated in. If I go to another and I am assulted [sic] 
by a 'cop' again, I'm going to the next one armed. Their 
[sic] were a large number of people in Chicago who felt 
the same way. So if this treatment of demonstrators con- 
tinues the forementioned revolution isn't very far off." . . . 



346 Report of the Task Force on Law and Law Enforcement 

At the time of their arrest, over half (55 percent) claim 
they were attacked by the police. . . . Although the police 
claimed that their violence was only in response to the 
violence of the demonstrators, they charged only 10 percent 
of the demonstrators with violent acts, while 55 percent of 
the demonstrators charged the police with violent acts. . . . 
The demonstrators were generally articulate about the 
major social problems facing America today. . . . 

To remedy the social problems, the majority recom- 
mended conventional techniques: demonstrations (53 per- 
cent), electoral activity (42 percent), community action 
groups (30 percent) (some of a radical nature) and educa- 
tion (29 percent). But two minorities ran in opposite di- 
rections: revolution armed if necessary (21 percent) and 
dropping out or doing your own individual thing (16 per- 
cent). . . . 

Intelligence reports for both events indicated that violence 
and disruptive conduct was likely to occur. Some of this infor- 
mation was absurd and simply the result of theatrics engaged 
in by the demonstrators to gain publicity for their cause, like 
the reported plans to contaminate Chicago's water supply with 
LSD. 16 Other information was gathered from sources which 
could not be regarded as reliable. 17 

Chicago authorities lacked any mechanism for distinguishing 
the serious from the ludicrous and unreliable. 18 As the Walker 
report concluded, "the intelligence agencies apparently made 
little effort to distinguish between the philosophies and intents 
of various groups. They were concerned not with whether a 
group advocated violence or adhered to nonviolent tenets, but 
with the dangers inherent in large crowds of demonstrators, 
regardless of whether all members espouse violence." 19 Im- 
plementing the tightest security measures ever witnessed at a 
national convention, no attempt was made to tailor those meas- 
ures to the type of threat received nor to distinguish those who 
were likely to engage in violence from those who presented no 
threat. Thus, for example, the spectre of assassination was 
advanced to justify the use of tear gas and mace to clear the 
parks and streets of nonviolent demonstrators, including clergy- 
men at prayer, even though no rational relationship between the 
demonstrators' conduct and an assassination plot could possibly 
be offered. This philosophy of "overkill" was to have serious 
ramifications. 

By contrast, Washington authorities carefully evaluated the 
intelligence reports they received. As one high-ranking police 
official expressed it, "An intelligence report is like beauty it 
lies in the eye of the beholder." Individuals and groups who 
were likely to engage in disruptive conduct were identified and 



A Tale of Two Cities 347 

watched closely. No attempt was made to interfere with the 
great majority of the demonstrators who presented no threat. 
Massive security measures were not flaunted in an attempt to 
intimidate participants who had no desire to engage in a con- 
frontation. As a result, the suggestion of an "armed camp" 
prepared for battle never greeted the Washington protestors. 
No massive publicity campaign regarding security ever detracted 
from the major scheduled event. 

Chicago authorities failed to make a real effort to reach an 
understanding regarding permits to engage in peaceful demon- 
strations requested by the demonstrators. They obstructed and 
delayed the negotiations in an attempt to discourage the pro- 
testors from engaging in their constitutional right to peaceably 
assemble to petition the government for redress of their griev- 
ances. 20 Among other tactics employed, they failed to answer 
correspondence, refused to schedule timely meetings with the 
proper officials, and imposed conditions which could not be ful- 
filled (such as requiring that a $100,000 to $300,000 liability 
bond be posted even though it was clear that no bonding com- 
pany would issue such a bond). Their counteroffers to the dem- 
onstrators, made under compulsion of law suits brought by the 
protesting groups, came too late and offered too little. 

Failure to engage in a meaningful dialogue with the pro- 
testors had far-reaching consequences. Government officials 
were denied the opportunity to determine the character of the 
spokesmen for the protestors. This knowledge could have proved 
helpful when the later difficulties began to unfold. The officials 
had no opportunity to amass intelligence from the spokesmen 
who could have pinpointed the difficulties they themselves were 
having. There was also no way to discover what activities had 
been planned by the protesting groups. 

Refusal to grant a permit meant that for the most of the 
time they were present, the demonstrators would have no focal 
point to their activity. Random groups were thus forced to 
remain random. This complicated the police function greatly. 
Rather than being able to focus their surveillance on limited 
numbers of mass gatherings, they were forced to spread them- 
selves thinly over a large geographical area without the ability 
to recognize leaders with whom they could communicate in the 
event of an emergency. 

The most serious result of the permit denial was to polarize 
further the attitudes of the protestors and the larger commu- 
nity. Angry at the denial of what they considered their right 
to a permit, many demonstrators came to Chicago determined 
to engage in their protest activities despite the absence of a 
permit. They began regarding the city authorities as venal and 
were determined to prove that they would not be intimidated 



348 Report of the Task Force on Law and Law Enforcement 

into foregoing what they considered was rightly theirs. Resist- 
ance and obstacles made them even more eager to stage their 
protest. 

Some individuals and groups, however, succumbed to the pres- 
sure and cancelled their plans to attend the protest. Although 
this is exactly what city officials hoped to achieve, the plan back- 
fired, for many members of the more staid and responsible 
groups were the ones who were thus intimidated. This meant 
that fewer responsible people were present to restrain their 
less rational compatriots when the escalation began to take 
place. 

On the other side, denial of a permit signified to citizens and 
police that the protest activities were illegitimate. They viewed 
those who assembled as trouble-makers and law breakers rather 
than as other citizens come to exercise their constitutional 
rights. This polarization was to have significant consequences 
as events unfolded. 

Washington authorities, on the other hand, negotiated con- 
scientiously and arrived at an agreement acceptable to both 
sides. District of Columbia Deputy Mayor Thomas Fletcher 
reflected the thinking of his city's administration when he said, 
"We felt they were entitled to a permit." 21 Shortly after the 
request for a permit was received, a high ranking federal official 
was assigned to work out the permit details. He met almost 
daily with the same demonstration leaders who had been denied 
an audience in Chicago, driving with them in his car to examine 
various proposed sites for the rallies. 

The demonstrators were allowed to construct a huge circus 
tent near the Washington Monument to serve as a focal point 
for their activities. They were not prohibited from sleeping in 
the tent. They were permitted to stage a parade along Penn- 
sylvania Avenue, the main thoroughfare through the center of 
government in Washington, the day before the Inaugural Pa- 
rade was to take place. Liability bonds were not required; 
rather, the permit required MOBE to use "all means at its com- 
mand and under its control" to avoid damage. 

The leaders of the protest, impressed with the forthrightness 
of the government spokesmen, made every effort to cooperate 
with city officials. Rennie Davis, a MOBE official who had fig- 
ured prominently during the Chicago convention, commented to 
the press, "I feel we have here the kind of cooperation we did 
not have in Chicago. For this reason I do not expect the physical 
confrontations and riots we had in Chicago." Potential trouble 
spots were pinpointed by the MOBE officials and the city learned 
in great detail the protestors' plans. They were thus able to 
deploy small forces of policemen to areas where they might be 
most effective yet relatively unobstrusive. 



A Tale of Two Cities 349 

Mutual cooperation characterized the resulting activities, en- 
abling both sides to react quickly to any emergency. The city 
supplied MOBE officials with direct communication links, such 
as walkie-talkies, which avoided breakdowns of communication 
at important crises. During one scuffle, policemen were kept 
away from the area while MOBE officials restored order. When 
the generator which supplied electricity to the demonstrators' 
tent ran out of fuel, the city fire department delivered the fuel 
within minutes. During the crucial minutes before the Presi- 
dent's car passed an assembled group of dissidents along the 
route of the Inaugural parade, city officials agreed, at the request 
of MOBE officials, to relieve a police officer who had angered 
the crowd by using unnecessary force. 

It is impossible at this point in time to determine whether 
protesters or police "struck the first blow" in Chicago. What is 
clear is that a few protestors and a few policemen began en- 
gaging in provocative conduct as soon as significant numbers 
of demonstrators began congregating in Chicago. Nevertheless, 
the mood was calm on Saturday and Sunday. 

Escalation soon took place as dozens of policemen using tear 
gas and clubs cleared Lincoln Park after curfew on Sunday, 
Monday, and Tuesday nights. Without coherent plans, policemen 
chased and clubbed innocent and guilty alike through the quiet 
streets of Old Town, often great distances from the park. 
Frightened and battered, the demonstrators regrouped during 
the days following these bloody chases. Like veterans of a war, 
they recounted to each other the horrors they had experienced 
the previous night. Anger mounted at stories of "leaders" being 
arrested for no apparent reason. 

Extremists who had earlier been ignored began to attract 
audiences. The protesters were told they were being forced to 
defend themselves and their friends. They were urged to resist 
being trampled on and to fight back. Each day the police were 
exposed to more and more jeers and obscenities. Each night 
they had to withstand heavier barrages of rocks. 

(The demonstrators' chief "weapon" was obscenity. Many 
rocks were thrown, but only a small number of demonstra- 
tors actually threw them. At no time did massive numbers 
of demonstrators engage in rockthrowing, not even on 
Wednesday night. Descriptions of the rock-throwing as 
"barrages" are, therefore, misleading unless qualified. They 
were barrages only in the sense that numbers of unidenti- 
fiiable people engaged in the rock-throwing. These people 
were scatered thinly through the crowds. 

It was widely reported that human excrement was thrown 
at policemen. The reaction to these reports was under- 
standably intense. However, little factual foundation sup- 



350 Report of the Task Force on Law and Law Enforcement 

ports these reports. Only three people, two policemen and 
a reporter, actually reported having seen feces thrown. 
Whether or not these reports were accurate, the conclusion 
is inescapable that the image of many demonstrators throw- 
ing human excrement has been drastically exaggerated. In 
all probability, human excrement was thrown on only one 
or two occasions if it was thrown at all.) 

Each day and night the police responded with even more venom, 
sowing the seeds of even more anger. 

The escalation of anger is revealed by the statistics dealing 
with injuries. On August 25, the night of the first major con- 
frontation, only 2 policemen were injured. The next two nights, 
15 and 13 policemen respectively were injured. Yet on the 
fourth night of the convention, 149 policemen suffered injuries. 
(The injuries to the demonstrators show a different sequence 
a much greater percentage received their injuries during the 
early days of the convention.) Thus, more than three-fourths 
of the injuries to policemen were sustained on the fourth day 
of a struggle in which hundreds of demonstrators had already 
been clubbed or arrested. 

The escalation of violence was thus a response to unfolding 
events. Goaded by a few extremists who antagonized police by 
jeering them, the police responded by indiscriminately gassing 
and clubbing large numbers of protestors. More and more pro- 
testors, angered at this willful violence by policemen, struck 
back in the only ways they, as upper-middle class, college-edu- 
cated youths could by swearing and throwing rocks. And so 
the escalation continued. Demonstrators provoked policemen. 
Policemen provoked demonstrators. The circuit of violence was 
closed. 

This cycle was never allowed to complete itself in Washing- 
ton. Provocation by demonstrators was met with restraint. 
Provocation by policemen was terminated by police and city 
officials who intervened quickly to restore discipline. As a re- 
sult, escalation never took place. 

Spokesmen for the demonstrators themselves attributed the 
difference in results between Chicago and Washington to the 
difference in official response. 

According to David Dellinger, Chairman of MOBE : 

The mood of the Mobilization people was much the same. 
The difference in the results was caused by the different 
attitudes of the city administration involved. Washington 
felt it was capable of containing demonstrations without 
turning it into a police riot. 

Another MOBE official commented : 



A Tale of Two Cities 351 

The difference between Chicago and Washington was a 
permit and a tent. The police react as the officials react. 
In Washington, the officials reacted well and the police 
reacted well. As a result, the demonstrators acted well 
towards the police and the officials. 

Fruitful lessons can be learned from this comparison. The 
encouragement of First Amendment rights, coordination and 
cooperation with protest leaders, education of the police and 
the larger community into viewing peaceful demonstrations as 
a matter of right, will usually lead, at least at this point in our 
nation's history, to obtaining the cooperation of the great major- 
ity of those who have gathered to protest. 

We do not mean to suggest that mass protest gatherings are 
static that tactics should be identical as time passes and issues 
and personalities change. The actions of the "Weathermen," an 
extremist fringe which engaged in offensive violence in Chicago 
in October, 1969, illustrates the danger in generalizations of any 
sort. Rather, the point is that in the area of mass demonstra- 
tions, where we all have so much to learn, it makes sense for 
those in authority to proceed cautiously, to avoid becoming rigid 
in outlook, and to employ force carefully. 

A PROGRAM FOR THE FUTURE 

The police must respond with the coolness and sound 
judgment they are expected and trained to exercise. They 
must discriminate between those relatively small number 
of individuals who instigate and engage in lawlessness and 
those who are innocent by-standers or merely caught up 
in the emotion of the event; and above all, they must not 
sacrifice the law or justice in the process of preserving and 
restoring order. 22 

There is no question that the police in the recent Chicago dis- 
orders and this has also been true in many other cities were 
subjected to intense provocation by some individuals ranging 
from vilification to injurious missiles. The average person con- 
fronted by that kind of abuse would not be expected to continue 
to exercise good judgment and restraint. 

Nevertheless, it is incorrect to say that no riot control force 
can be expected to respond to intense provocation in a disciplined 
and restrained manner. The Walker Report concluded that the 
National Guard "apparently stood its ground without any sig- 
nificant response physical or verbal to the demonstrators, 
despite the level of abuse that one guard official called "un- 
believable'." While there were instances of undisciplined re- 
action on the part of individual guardsmen, it appears that they 
were able to withstand considerable provocation. Similarly, 



352 Report of the Task Force on Law and Law Enforcement 

members of the Washington, D.C., police force withstood in- 
tensely provocative conduct during the Counter-Inaugural Pro- 
test activities with little visible reaction. 

This does not mean that the civil government should not act 
promptly and decisively against violations of its laws. As the 
Civil Disorders Commission stated : 

Individuals cannot be permitted to endanger the public 
peace and safety, and public officials have a duty to make 
it clear that all just and necessary means to protect both 
will be used. 

But the very essence of police professionalism and all good 
police training programs, including Chicago's, stress this 
demands that a police officer remain calm and impartial despite 
intense provocation. 23 As the Civil Disorders Commission 
stated : 

Police discipline must be sufficiently strong so that an 
individual officer is not provoked into unilateral action. He 
must . . . avoid panic or the indiscriminate and inflamma- 
tory use of force that has sometimes occurred in the heat 
of disorders. 

This kind of self discipline is essential in dealing with any tense 
situation and especially in controlling a demonstration or ,a dis- 
order. As the FBI riot control manual states: 

The basic rule, when applying force, is to use only the 
minimum force necessary to effectively control the situa- 
tion. Unwarranted application of force will incite the mob 
to further violence, as well as kindle seeds of resentment 
for police that, in turn, could cause a riot to recur. 

Policemen do not operate in a vacuum, but in a context of 
strong human emotions. It is easy to understand how members 
of a police force can get angry after having people swear and 
throw rocks at them. But few "law and order" advocates take 
the time to imagine how they would react if policemen clubbed 
and beat their friends, wives, or daughters simply because of 
their color, their clothes, or the fact that someone else nearby 
had committed an illegal act. Yet who has not felt anger at 
receiving what he considers an unjustifiable traffic ticket? One 
commentator captured the phenomenon by asking the rhetorical 
question, "Can anything be more frustrating to an American 
than to be beaten and otherwise mistreated by the very author- 
ities who have been entrusted with a monopoly of physical 
force . . .? 24 

America's younger generation may indeed be the most peace- 
loving and rational this country has ever enjoyed. Should we 



A Tale of Two Cities 353 

not pause when, as in Chicago, hundreds of young idealists are 
driven to join their less rational compatriots in hurling abuse 
and rocks at "Friendly Officer John"? Should we not ask why 
the chain of events has taken place rather than condemn 
thoughtlessly? For hundreds of our nation's best educated youths 
to shout obscenities at duly constituted law enforcement officials 
is such a bizarre phenomenon that it is hard to believe that it 
actually took place. 

The provocative acts by a handful of radical extremists in 
Chicago and the vicious battles with policemen in Cleveland 
and elsewhere create a real danger that a few people will 
succeed in provoking the police and civil officials into employ- 
ing brutal and repressive measures which will alienate mod- 
erates in the community and create in this country the very 
kind of dangerous insurgency which other countries have ex- 
perienced. It is imperative that police and public officials avoid 
falling into this trap. For the tactics and pattern of deliberate 
terrorism and guerrilla-type activities which seem to be start- 
ing to emerge follow the classical development of a revolutionary 
movement. It could lead to an urban insurgency that would 
have far-reaching consequences for all Americans, white and 
black, rural and urban. 

The history of groups with severe, legitimate grievances has 
demonstrated again and again that when a radical element 
seeks the leadership it first attempts to organize the bulk of 
the grievance group into a supporting and protective force. To 
win this kind of majority support, they will try to alienate the 
grievance group from the community. This will be done through 
a variety of demands and actions that will cause the general 
community, which fails to differentiate between the radical and 
moderate membership, to become hostile to all of the grievance 
group. In other countries confronted by civil unrest arising 
from legitimate grievances by significant segments of the popu- 
lation, riots and organized violence have been effective tech- 
niques employed by extremist groups both to radicalize those 
demanding social, economic or political change as well as to 
goad the authorities into overreacting with indiscriminate and 
excessive force. These attacks have been directed against vital 
installations such as power, telephone, water atid transporta- 
tion systems, for the purpose of disrupting and paralyzing the 
normal processes of government and of the community. Attacks 
have also been launched against the institutions of the ruling 
society schools, shopping centers, government buildings and 
prominent individuals. 

The normal and traditional reactions of those attacked has 
been to urge a policy of stern repression and to refuse to re- 
spond to any of the demands until the violence stops and order 



354 Report of the Task Force on Law and Law Enforcement 

is restored. But this is the very response that the radical leader- 
ship has sought to evoke. By manipulating the outraged reac- 
tion of the community and the police into retaliatory measures 
which will alienate those seeking redress of legitimate griev- 
ances, they will then be more successful in persuading the ag- 
grieved that they cannot achieve their objectives through peace- 
ful, evolutionary means within the system ; that their only hope 
of effecting change is to resort to violence and revolution. 

The American people had a chance to observe a limited version 
of this tactic in action at San Francisco State College this past 
year. 25 Starting with a small number of black students who 
engaged in minor forms of disruption, the ensuing battle re- 
sulted in a mobilization of student opinion overwhelmingly in 
sympathy with the demands of the original minority. One of 
the leaders of the strike explained the tactic before the strike 
began : 

It just so happens that the members of the BSU Central 
Committee have been analyzing how student movements 
have been functioning. Taking over buildings, holding it 
for two or three days, and then the thing is dead. Most of 
your leaders are ripped off and thrown in jail, or the masses 
are thrown in jail, and there's no one to lead them. From 
our analysis of this, we think we have developed a tech- 
nique to deal with this for a prolonged struggle. We call 
it the war of the flea . . . what does the flea do? He bites, 
sucks blood from the dog, the dog bites. What happens 
when there are enough fleas on a dog? What will he do? 
He moves. He moves away. He moves on. And what the 
man has been running down on us, he's psyched us out, in 
terms of our manhood. He'll say, what you gone do, nigger? 
You tryin' to be a man, here he is with shotguns, billy clubs, 
.357 magnums, and all you got is heart. Defenseless. That's 
not the way it's going to go any more. We are the people. 
We are the majority and the pigs cannot be everywhere, 
everyplace all the time. And where they are not, we are. 
And something happens. The philosophy of the flea. You 
just begin to wear them down. Something is always costin' 
them. You can dig it ... something happens all the time. 
Toilets are stopped up. Pipes is out. 

Water in the bathroom is just runnin' all over the place. 
Smoke is coming out of the bathroom. "I don't know nothin' 
about it. I'm on my way to take an exam. Don't look at 
me. . . ." When the pig comes down full force, ain't nothin' 
happening. He retreats. When they split, it goes on and 
on and on. . . , 26 

Governor Ronald Reagan and the Board of Trustees predictably 



A Tale of Two Cities 355 

refused to deal with the student demands until "order" had 
been restored. This refusal to deal promptly with the merits 
of the strike antagonized moderate students and faculty, who, 
although they disagreed with the strikers' "tactics," agreed in 
whole or in part with their demands. 

Nevertheless, support for the strike began to wane until only 
several hundred students were actively involved. The real mo- 
biilzation of student opinion occurred only after a unit of the 
police tactical squad blundered into a club-swinging confronta- 
tion with students, many of whom were uninvolved in the strike. 
According to the Orrick Report, this was the "turning point" 
of the strike, resulting "in an almost classic pattern of escala- 
tion." 27 By the end of the day the strike had been turned into 
an undertaking supported by thousands of students. Normalcy 
was not restored until significant concessions were made to the 
strikers' demands. 

Studies made of urban insurgencies in other countries have 
shown that it is very difficult to destroy an urban resistance 
movement in a divided country. 28 The amount of ruthlessness 
which the police must employ to crush such an insurgency would 
become publicly intolerable, even though the provocation con- 
sists of various forms of terror and sabotage that outrages re- 
sponsible people. 

History has shown that the temporary order achieved by em- 
ploying methods of force which are excessive or inappropriate 
in their nature is likely to be won at too high a price in terms 
of a divided and bitter citizenry and an unstable civil peace. 
The self-defeating effect of force which the community regards 
as excessive or unjustified has been demonstrated over and over 
again. This has been true not only in this country but abroad 
as well. It was the brutal physical force used by the Paris riot 
control forces against the rebellious students that mobilized 
public sympathy and support and turned a relatively minor riot 
into a major disaster that paralyzed all France during May of 
1968. It was the ruthless treatment of Irish rebels that led to 
a universal outcry against the Black and Tans and created 
popular support for the movement. It was the repressive meas- 
ures employed by the French against the Algerian rebels that 
led to public revulsion in France, and enabled the Algerian 
revolutionaries to achieve their victory over superior French 
police and military forces. It was the inhumaneness of police 
dogs and cattle prods used against peaceful black Americans in 
the streets of Selma which prompted the passage of civil rights 
legislation. It was the excessive use of police force and the fail- 
ure to discriminate between innocent and guilty parties during 
the recent Chicago incidents that led to increased disaffection 
among many students and other young persons. It was the 



356 Report of the Task Force on Law and Law Enforcement 

brutality exhibited by policemen at Columbia, Harvard, San 
Francisco State, and the shotgunning of unarmed students at- 
tempting to maintain their park in Berkeley (which resulted in 
numerous injuries and the death of a young man) which 
prompted mass, angry demonstrations and resulted in repulsing 
large numbers of moderate members of the community. 

The problem of the police in dealing with such deliberate 
provocations and explosive situations coolly and intelligently is 
tremendously complicated by the fact that in the United States 
today there are more guns in the hands of individual citizens, 
black and white, than in the hands of all the police, all the Na- 
tional Guards and all the U.S. armed forces forces combined. The 
private arsenal has grown since the sumer of 1967. Reports are 
rampant of weapons stockpiling by vigilante groups as well as 
black militants. 29 Firearm sales have skyrocketed in commu- 
nities which experienced disorders, such as Detroit. The poten- 
tial for counter-violence and increased disorder inherent in this 
fantastic arsenal of privately owned weapons must be taken into 
account by every official responsible for the public safety. 

We do not mean to imply that the forces of discontent have 
reached a level of intensity which presents such serious danger. 
Few serious "revolutionaries" exist in our country, despite the 
attention which they are given by the mass media and the gen- 
eral public. More often than not, the self-styled "revolution- 
aries" in reality are simply engaging in theatrics designed to 
attract attention to their grievances. 

Nevertheless, we must anticipate other acts of lawlessness 
and terrorism to occur in various parts of our country which 
the radical extremists on both sides will try to exploit to their 
own advantage and objective. The immediate security problem 
will require necessary measures that will enable the police and 
civil authorities to distinguish among those who seriously wish 
violently to disrupt, those who engage in disruptive conduct 
out of fear and frustration, and those who wish to participate 
in peaceful protest and demonstration. 

A critical ingredient to the success and effectiveness in coping 
with these control problems is good intelligence. It is essential 
that the police possess an intelligence system which enables 
them to measure with precision the real threat to the commu- 
nity posed by individuals and groups. They must not mislead 
officials by crying "Wolf!" each time a self -proclaimed revolu- 
tionary urges that "something must be done." 

Nor should such intelligence be gathered at the expense of the 
civil rights and privacy of dozens of law-abiding people who 
happen to disagree with the current policies of our government. 
Information currently maintained on "suspect" individuals, such 
as storing on a computer names of people who signed a petition 



A Tale of Two Cities 357 

critical of the Vietnam war effort, has no place in our society. 
That form of intelligence gathering frightens individuals who 
fear the misuse of the data and thus forego engaging in such 
lawful forms of protest. 30 More reliable data could be gathered 
by maintaining good public relations and establishing mutual 
confidence and respect with the broad mass of community resi- 
dents who want order and oppose violence and lawlessness. 

It will also require proper and intelligent responses to those 
who believe they have legitimate grievances and wish to exercise 
their constitutional rights to protest or demonstrate peacefully. 
Failure to recognize and protect such rights will only benefit 
the extremists. As the FBI states in its manual on riot control : 

A peaceful or lawful demonstration should not be looked 
upon with disapproval by a police agency ; rather, it should 
be considered as a safety valve possibly serving to prevent 
a riot. The police agency should not countenance violations 
of law. However, a police agency does not have the right 
to deny the demonstrator his constitutional rights. 

Despite the best precautions and no matter how effective the 
counter-measures are, violent events are a risk that must be 
anticipated. Consequently, planning for such contingencies must 
be designed to limit the nature and extent of the damage and 
to enable the community to continue to function satisfactorily. 

We must recognize that the preservation of civil peace cannot 
and should not be regarded as merely a control problem better 
left to the police. It is the responsibility of the entire commu- 
nity, in particular of its duly elected public officials. For the 
demonstrations and the disorders which we are experiencing 
are manifestations of deep and difficult social, political and eco- 
nomic problems. They cannot be solved, much less long con- 
tained, by police power alone, no matter how enlightened and 
judicious that may be. 

Police officials are understandably reluctant to relinquish the 
authority that has devolved on them by default to deal with 
mass disorders. They resent intrusion into what they consider 
their professional domain by elected officials who do not share 
their own professional background and experience. Often, at- 
tempts by elected officials to regain their rightful place as 
de facto as well as de jure heads of police departments have 
been met with resistance and sometimes irreconcilable con- 
flict. 31 

This form of resistance must not be allowed to subvert elected 
officials. Only government officials who feel the pulse of the 
community in all its various manifestations are capable of de- 
ploying effectively not only police resources, but other commu- 
nity resources, such as social workers, human rights councils, 



358 Report of the Task Force on Law and Law Enforcement 

housing inspectors, and others, who can deal with the grievances 
which may initially spark a confrontation. In later stages, only 
the chief elected official has the authority to deploy and co- 
ordinate fire-fighting units, courtroom personnel, as well as the 
police. To look at the problem as only a police problem is 
shortsighted. 

This is not meant to imply, of course, that policemen are 
always and necessarily less astute than elected officials, or that 
the intervention of elected officials will always and necessarily 
lead to more enlightened law enforcement. In fact, the result 
may sometimes be quite the opposite. Besieged by a backlash 
of public opinion, elected officials may be less able to deal fairly 
with a dissident group than would a professional chief of police 
removed from the political arena. But this observation does 
not substantially weaken the force of our general recommenda- 
tion, since it merely restates a problem inherent in a democracy. 

Washington, B.C., has made significant strides toward cen- 
tralizing in the hands of its Mayor the responsibility for dealing 
with civil disorders. Following the disorders that accompanied 
the assassination of Martin Luther King, Mayor Walter Wash- 
ington established a command post which operates around the 
clock and which serves as his office during an actual civil 
emergency. 

Inside the Command Post a sophisticated array of communi- 
cations equipment links the staff with the outside world, en- 
abling them to monitor events and control available resources 
instantaneously. Efforts are made to resolve community griev- 
ances breeding hostility. Advance intelligence pinpoints poten- 
tial trouble spots throughout the city and observers dispatched 
to the scene keep the staff informed on the situation. 

Events likely to precipitate tension, such as shootings involv- 
ing policemen, are immediately brought to the attention of the 
Mayor and other city officials. The Commissioner of Human 
Rights is immediately dispatched to the scene. 

A disorder which escalates brings the Mayor to the Command 
Post. From his desk he can watch the event on four television 
sets, listen to police and commercial radio broadcasts, examine 
maps of the trouble zone, and receive instantaneous messages 
from observers in the field and officials of the city and federal 
governments. By pressing a button he can have conference calls 
with every relevant official in the city, federal government, mili- 
tary, and neighboring communities. From his desk, his home, or 
his car, he can broadcast over every Washington AM and FM 
radio station by pressing another button. 

Everything occurring at the Command Post is recorded for 
future reference. Studies are constantly made to modify pro- 
cedures and update techniques. 



A Tale of Two Cities 359 

The result of this planning has been heartening. Despite 
the underlying tension in the community, Washington has en- 
joyed a year of relative calm. Disorders have been handled 
effectively and with moderation. 

The dangers ahead do not come only from the radicals of 
the left who are seeking to change the established system and 
its institutions. There is an equal potential for violence and 
destruction among the redical minority of the right who mili- 
tantly oppose any concessions to the grievance group. The 
history of our own country is replete with examples of such 
extremists who have turned to counter-terror as a means of 
retribution and preservation of the status quo. 

In his testimony before the Commission, Dr. Richard Max- 
well Brown reviewed the conditions that historically have pro- 
duced vigilantism. An analysis of the current climate in the 
United States led Professor Brown to warn the Commission 
that "a new wave of vigilantism is a real propect today." If 
the hard-core of extremists on the right, who are today actively 
organizing, arming, and threatening to take the law into their 
own hands, should do so, they will contribute to the very same 
polarization and chain of violence that the hard-core extremists 
on the left are working so hard to accomplish. 

It is easy to understand the daily frustrations police officers 
must live with in fighting a losing battle against the rising 
incidence of crime and of trying to maintain the civil peace in 
an environment of tension and hostility which is directed against 
the institutions a policeman has been taught to respect and 
value. It is equally understandable how fearful and angry so 
many Americans feel over their sense of physical insecurity for 
themselves and their families, and their apprehension and out- 
rage against group violence that has accompanied many civil 
disorders. 

None of us should forget, however, that real security of 
persons and property in our cities and the preservation of 
the civil peace will only be meaningful if they are achieved in a 
way that is consistent with the values of a democratic society. 
This will require order that is maintained under the law and 
with justice. Justice in this respect is not simply a semantic 
embellishment. It is the way chosen by our founding fathers to 
insure that groups who feel themselves outside the mainstream 
never become so alienated that they resort to violence. In that 
respect, this Nation differs from most nations in the world. 
Because of it, we have experienced an existence of relative 
peacefulness. We should not sacrifice the best of our heritage 
amid the growing public-clamor to remove the thorns of dis- 
enchantment from the nation's side. 



360 Report of the Task Force on Law and Law Enforcement 

A PROPOSED FEDERAL REMEDY 

Since the 1930's, the people of the United States have fre- 
quently turned to the Federal Government for remedial action 
in matters ranging from control of the economy to the exercise 
of Constitutional rights. The civil rights acts of recent years 
provide specific federal remedies for private interference with 
other constitutional rights, such as the right to employment, 
housing, travel and use of public accommodations and commer- 
cial establishments free of discrimination because of race, re- 
ligion or national origin, the right to vote and participate in any 
federally assisted program, and the right to carry on a business 
free of intimidation or injury during a riot or civil disorder. 
Yet, at the present time of crisis, during which the denial of 
First Amendment rights has led to intense polarization and 
violence, we limp along slowly trying to resolve these matters 
in an unsystematized way. 

It would appear to be an equally valid and justified exercise 
of Congressional power to provide a specific federal judicial 
remedy for unlawful interference with the rights of speech, 
assembly, petition and free passage incidental thereto. The 
precedents of our history commend a new federal law which 
would (1) empower the federal government to seek judicial 
redress (especially injunctive relief) for unlawful interference 
with First Amendment rights, and (2) authorize an agency of 
the government to investigate the extent to which First Amend- 
ment rights are secured. 

Although private individuals may presently seek redress under 
42 U.S.C. 1983, a Reconstruction era statute creating liability 
for "deprivation of any rights, privileges, or immunities secured 
by the Constitution and laws" by any person "under color of" 
state law, 32 private parties are not always suitable litigants in 
the First Amendment forum. Litigation is costly. In addition, 
in the area of free speech, not all invasions have a direct indi- 
vidual effect and the broader, possibly more indirect deprivations 
of rights may go unchecked. Similarly, where a deprivation of 
rights may lead to violence, the interests of the public should 
not be left to private litigation. Additionally, private litigants, 
although possibly correct in their interpretations of events, often 
have difficulty persuading courts of the soundness of their posi- 
tion when faced with contradictory statements of duly consti- 
tuted law enforcement officials. 

In recent civil rights and voting rights legislation, Congress 
has made the Attorney General an increasingly active figure 
in protecting certain vital individual rights. This approach 
seems particularly appropriate for the protection of First 
Amendment rights, also. 



A Tale of Two Cities 361 

New legislation should give the Attorney General broad 
authority to commence, or intervene in, civil actions brought 
against public officials to protect freedom of expression whether 
that expression is endangered by the denial of permits, the 
unnecessary use of police force, or the interference with pub- 
lications promulgated by dissident groups. Incident to that 
power, the Justice Department would automatically have the 
authority to investigate alleged interference with First Amend- 
ment rights. The Department would become a powerful force 
seeking immediate, informal resolution of potential confronta- 
tions involving freedom of expression. Where confrontation 
appears inevitable, the Department would be able to resort to 
the courts promptly, provide essential factual material and 
help in other ways to make the courts a more effective forum 
for resolving First Amendment conflicts. 

The federal government, perhaps through the Civil Rights 
Commission, should also undertake to collect and study infor- 
mation on developments relating to freedom of expression and 
establish a national clearing house for such information. It 
should undertake the review and development of legislation and 
policy guidelines at the state and local as well as federal 
level in the area of First Amendment rights. 

Additional questions will exist regardless of who is to admin- 
ister the proposed statute. Protection for the press and other 
media, for example, should also be granted. Federal courts 
must be able to respond quickly enough in the normal course of 
litigation to insure that rights are not abandoned due to lapse 
of time. 

These problems, and no doubt many others, must be resolved 
before new federal protection for freedom of expression can 
be enacted. But we believe such protection is plainly necessary, 
and we hope this proposal advances its course. 



REFERENCES 

1 Roy Pearson, "The Dilemma of Force," Saturday Review, Feb. 10, 1968, 
at 24. 

2 Erskine, "The Polls: Demonstrations and Race Riots," 31 Public Opinion 
Quarterly 655-677. 

3 June 7, 1968. 

4 Ted Gurr, Why Men Rebel, ch. 8, to be published by the Princeton 
University Press, Nov. 1969. 

5 See, e.g., Robert M. Fogelson, "From Dissent to Confrontation: The 
Police, the Negroes, and the Outbreak of the Nineteen Sixties Riots/' 
83 Political Science Quarterly 227 (June 1968). 

6 Crisis at Columbia, Report of the Fact-Finding Commission Appointed 
to Investigate the Disturbances at Columbia University in April and May, 
1968, (New York: Vintage Books, 1968) at 99-168; Police on Campus: 



362 Report of the Task Force on Law and Law Enforcement 

the Mass Police Action at Columbia University, Spring, 1968 (New York: 
American Civil Liberties Union, 1969). 

7 Rights in Conflict, A Report to the National Commission on the Cause 
and Prevention of Violence 53 (1968). 

8 See id. at viii, 31, 53. 

9 Although the Columbia disorders were preceded by a number of events, 
the precipitating incident occurred when a group of students occupied 
Hamilton Hill, a classroom building. Thereafter, the office of the university's 
president and several other campus buildings were occupied. The students 
announced three causes motivating the seizure and occupation of the 
buildings. These were: (1) opposition to a projected gym to be constructed 
in a Harlem park; (2) opposition to Columbia's relationship with the 
Institute of Defense Analysis, a warfare research organization; and 
(3) opposition to the disciplinary action taken by the university as a result 
of its ban on indoor demonstrations. Efforts at mediating the dispute and 
persuading the protesting students to leave the buildings were attempted by 
a faculty committee. Although these efforts proceeded for several days, they 
were unsuccessful. One week after the occupation began, police entered the 
affected buildings and cleared them of demonstrators. Violence occurred 
not only in the occupied buildings but in the surrounding campus area 
which was also ordered to be cleared. One hundred and three persons 
obtained hospital treatment and 692 persons were arrested. 

10 New York Times, May 9, 1968, at 1. 

11 A. H. Barton, "The Columbia Crisis: Campus, Vietnam, and the 
Ghetto," 32 Public Opinion Quarterly (1968). 

12 New Republic, June 28, 1969. 

13 The relevant studies are summarized and evaluated in Gurr, supra 
note 4. 

1 4 Paul R. Miller, Characteristics of Youth Activists: The Chicago 
Demonstrators (1968). 

15 It is interesting to note that far more intense feelings were registered 
in responses to questions regarding adherence to "Humphrey Democrats" 
politics. Only 1 percent were for this political philosophy, while 78 percent 
were against and 21 percent were indifferent. 

16 Rights in Conflict at 49 contains a lengthy list of reported "threats" 
which can only be described as ludicrous. Although the novelty of this form 
of attention-getting had waned by the time of the Counter-Inaugural protest, 
similar threats preceded that event. Rights in Concord at 81. 

I? Rights in Conflict at 59. 

18 Id. at viii. 

19 Id. at 59. 

20 In addition to the findings reported in Rights in Conflict at viii, 31-42, 
the Sparling Commission, comprised of prominent citizens in the Chicago 
area, recently concluded: 

Chicago's record in regard to right of assembly and use of streets and 
parks is a discriminatory one. Over two decades, the city has welcomed 
parades down its main streets by conventional groups and for such occa- 
sions as St. Patrick's Day, Christmas, Armed Forces Day, Gen. Douglas 
MacArthur Day, Veterans Day and Columbus Day. 

Groups with unpopular opinions have had a different experience. When 
they attempted to parade or rally, march or demonstrate, it is fair to say 
generally they met a wall of silence and delay, and obtained permits with 
the greatest difficulty. 

The Commission further accused Chicago officials of deliberately and 
unconstitutionally manipulating permit requirements by means of "fraud" 
and "lies" to deny permission to those who wished to protest at the 
convention. See the New York Times, Aug. 21, 1969, at 23. 



A Tale of Two Cities 363 

21 Rights in Concord at 115. The following discussion is taken from the 
same report at 82-88. 

22 Arnold and Louise Sagalyn, Paper prepared for The National Com- 
mission on the Causes and Prevention of Violence. 

23 Chicago Police Department Training Bulletin, Tension Situations 
(Apr. 24, 1967) : 

Preventing civil disorders is always easier than suppressing them. The 
police officer, by disciplining his emotions, recognizing the rights of all 
citizens, and conducting himself in the manner his office demands can do 
much to prevent a tension situation from erupting into a serious disturb- 
ance . . . 

The officers making the arrest must not show partiality in any manner. 
They should not make indiscriminate or mass arrests. Above all, the 
officers must not become excited. Such an emotion can easily spread to the 
crowd and cause serious difficulty. The officers on the scene should display 
tact and constraint. The officers must be calm and act as a neutralizing 
agent. 

24 Fogelson, supra note 5 at 277. 

25 The following discussion is based on Shut It Down! A College in 
Crisis (U.S. Govt. Printing Off., 1969), the report on the San Francisco 
State disorders prepared for the Commission by William H. Orrick, Jr. 

26 Id. at 128-129. 

27 Id. at 41 et seq. 

28 See Report on Urban Insurgency Studies, sponsored by the Advance 
Research Projects Agency, Washington, B.C. 

29 See ch. 9 of the Commission's Task Force Report on Firearms, 
Firearms and Violence In American Life (U.S. Govt. Printing Off. 1969), 
prepared by George D. Newton and Franklin E. Zimring. 

30 A judge of the New Jersey Superior Court has recently ruled uncon- 
stitutional that state's method of collecting data on "activists." Anderson 
v. Sills, No. C215-68, Aug. 6, 1969. 

31 Seek Skolnick, Politics of Protest, ch. VII. 

32 For application of the statute in First Amendment cases, see Hague 
v. CIO, 307 U.S. 496 (1939). 



CHAPTER 17 

SECURING POLICE COMPLIANCE WITH 

CONSTITUTIONAL LIMITATIONS: THE 

EXCLUSIONARY RULE AND OTHER 

DEVICES* 



The Supreme Court of the United States has evolved rules 
governing police conduct in making searches and arrests (now 
eavesdropping and wiretapping as well) from the imprecise 
words of the Fourth Amendment: "The right of the people to 
be secure in their persons, houses, papers, and effects, against 
unreasonable searches and seizures, shall not be violated, and 
no warrants shall issue, but upon probable cause, supported by 
oath or affirmation, and particularly describing the place to be 
searched, and the person or things to be seized." The Court's de- 
cisions have set constitutional limits on permissible police con- 
duct, and in recent years these limits have become binding on 
State as well as federal officers. 

Obviously, the content of these rules and other rules governing 
police conduct is likely to have a great impact on the incidence 
of violence in the community. If the rules permit police to use 
considerable force in a wide variety of situations, the level of 
violence rises. If the rules permit conduct which is generally 
considered outrageous, either as an intolerable invasion of 
personal security or of privacy, we can expect outbursts of vio- 
lence in protest against the sanctioned behavior. If the rules 
so hobble the police that convictions are extremely difficult to 



* This chapter was prepared by Dean Monrad G. Paulsen, Professor 
Charles Whitebread, and Assistant Professor Richard Bonnie of the 
University of Virginia School of Law. 

The authors gratefully acknowledge the substantial assistance in the 
writing of this chapter of Richard J. Bonnie, who is joining the faculty of 
the University of Virginia School of Law as an Assistant Professor. 
We also acknowledge the contribution of Robert W. Olson, whose Note on 
Grievance Response Mechanisms for Police Misconduct in the June 1969 
issue of the Virginia Law Review contains views similar to those expressed 
in this chapter. Finally, we note the valuable research efforts of Craig H. 
Norville, W. Tracey Shaw and Russell R. French, also students at the 
School of Law. 

365 



366 Report of the Task Force on Law and Law Enforcement 

obtain in cases involving serious harms, the resulting anxiety 
and fear may themselves prove to be a breeding ground for 
destructive outbursts. This relationship between violence and the 
rules governing the police is further complicated by the fact that 
the methods of enforcing the rules are likely to differ in respect 
to their respective capacities to produce dangerous responses. 

This chapter is devoted to an examination of the many ways 
by which police compliance might be secured. We began with 
what has been, historically, the most controversial of the means of 
securing compliance the exclusionary rule. (The rule of exclu- 
sion obviously is also used to discourage police and other official 
misconduct involving other Constitutional provisions, such as the 
Fifth Amendment's protection against being required to make 
self-incriminatory statements.) Thereafter we treat a wide var- 
iety of other remedies ranging from damage actions and injunc- 
tions to civilian review boards and "ombudsmen." At the con- 
clusion we recommend a new approach to the problem of remedy- 
ing police misconduct. 

THE EXCLUSIONARY RULE 

Until 1914 the general view of the nation's courts, state and 
federal, was that all material and relevant evidence should be 
admissible in a criminal case without regard to the manner by 
which it was obtained. The first important change in judicial 
opinion is recorded in Weeks v. United States. 1 

By a motion made prior to trial, the defendant in Weeks 
sought the return of property taken from him by police without 
a semblance of lawfulness. His house had been entered without a 
warrant and thoroughly searched in his absence. The trial court 
ordered the return of all the property taken save that "pertinent" 
to the charge against him (use of the mails for transportng 
lottery tickets). The Supreme Court reversed in a unanimous 
opinion, and held that even the material relating to the offense 
should have been returned, basing its decison on two main points : 

(1) "The tendency of those who execute the criminal laws 
of the country to obtain conviction by means of unlawful 
seizures and enforced confessions . . . should find no sanction 
in the judgments if the courts which are charged at all times 
with the support of the Constitution and to which people of 
all condition's have a right to appeal for the maintenance of 
such fundamental rights" 2 ; 

(2) "If letters and private documents can thus be seized 
and held and used in evidence against a citizen accused of an 
offense, the protection of the Fourth Amendment declaring his 
right to be secure against such searches and seizures is of no 



Securing Police Compliance With Constitutional Limitations 367 

value, and, so far as those placed are concerned, might well 
be stricken /rom the Constitution." 3 

The first point has been echoed by Justices of impressive 
authority. Justice Holmes has written, "We have to choose, and 
for my part I think it a less evil, that some criminal should 
escape than the Government should play an ignoble part." 4 Mr. 
Justice Brandeis put the point that the use of illegality obtained 
evidence, "is denied in order to maintain respect for law; in 
order to promote confidence in the administration of justice; 
in order to preserve the judicial process from contamination." 5 
Judge Roger Traynor of California observed in People v. Cahan, 6 
"The success of the lawless venture depends entirely on the 
court's lending its aid by allowing the evidence to be introduced." 

The facts of Cahan underscore the point. The police conduct 
there involved two separate trespasses into a private home in 
order to install a microphone. The action was undertaken after 
permission had been received from the Los Angeles chief of 
police. The entire purpose of the illegal conduct was to obtain 
evidence for use in court. The incident was planned and approval 
was obtained at the highest level of police authority. It was not 
the case of a rookie policeman who misjudged the complicated 
law of search and seizure. 

The spectacle of government breaking the law and employing 
the fruits of illegal conduct seems likely to breed disrespect for 
both the law and the courts, It does not seem daring to suggest 
that in such disrespect may lie the seeds of violent conduct. 

The second point, that without the exclusionary evidence rule 
the constitutional guarantees of the Fourth amendment are of 
"no value", has also proved persuasive in the decisive cases. In 
Mapp v. Ohio, 1 which extended the exclusionary evidence rule to 
the States, Mr. Justice Clark wrote; . . . "[without the rule] 
the freedom from state invasions of privacy would be so ephe- 
meral ... as not to merit this Court's high regard as a freedom 
implicit in the concept of ordered liberty." Mr. Justice Traynor, 
again in People v. Cahan, 8 affirmed, "Experience has demon- 
strated . . . that neither administrative nor civil remedies are 
effective in suppressing lawless searches and seizures." At an- 
other point in that opinion, which embraced the exclusionary rule 
for the state of California six years before Mapp, Justice 
Traynor explained the action of the California Court: "other 
remedies have completely failed to secure compliance with the 
constitutional provisions on the part of police officers." 9 

Whether the exclusionary rule actually does effectively deter 
the police is a question without a firm answer. No solid research 
puts the question to rest. The assumption is that the police wish 
to convict those who commit crimes and that, if we bar the use 



368 Report of the Task Force on Law and Law Enforcement 

of evidence illegally obtained, the police will conform to the rules 
in order to achieve that aim. 

We know that the rise and expansion of the exclusionary 
rule has been accompanied by many efforts at police education. 
Courses in police academies, adult education programs for police 
sponsored by local headquarters ; courses in colleges and univer- 
sities offered to police on the issues presented by the Fourth 
Amendment have sprung up nearly everywhere. More and more 
police leaders affirm the necessity for staying within the rules. 
More and more police departments have become interested in the 
formulation of guidelines for the officer on the beat who must 
make snap judgments. It is difficult not to credit the exclusionary 
rule for some of these developments. 

One criticism of primary reliance on the exclusionary rule to 
deter police misconduct is that, with its rationale of deferrence 
through deprivation of incriminating evidence, it does not deter 
when police act in situations where prosecution is not contem- 
plated. If officers merely seek to harass a citizen, the exclusionary 
rule does not influence the officers to cease. 10 

We do not see ths point as an argument against the rule, 
however, but only as calling for the creation of other remedies. 
The need is for supplementation, not abandonment. 

Another question is: will reliance on the exclusionary rule 
breed police violence? If the police are "handcuffed" and, there- 
fore, unable to obtain convictions, will they impose extra judicial 
punishment? Will they subject dangerous "criminals" (so iden- 
tified by the police) to beatings and harassments? If so, the need 
is again for additional remedies not necessarily abandonment 
of the rule. It is important to remember, as well, that if the police 
are "handcuffed" it is because of the rules of search and seizure 
and not because of the rule of exclusion. The rule of exclusion tells 
nothing of the rules governing the police : the exclusionary rule 
can operate with strict limitations on police activity as well as 
with limitations which permit the police a wide latitude in the 
choice of behavior. 

Judge Henry Friendly of the U.S. Court of Appeals for the 
Second Circuit has recently suggested that we ought not apply 
the exclusionary rule to enforce all the search and seizures rules 
in all kinds of cases. United States v. Soyka u involved the ad- 
missibility of evidence taken by illegal conduct but Judge Friendly 
described the police behavior as an error ". . . so minuscule 
and pardonable as to render the drastic sanction of exclusion, 
intended primarily as a deterrent to outrageous police conduct 
. . . almost grotesquely inappropriate." 12 He went on to suggest 
the possibility of a system which would apply or not apply the 
exclusionary rule depending on the gravity of the offense involved 
and the seriousness of the police misconduct. 13 



Securing Police Compliance With Constitutional Limitations 369 

Judge Friendly's position is attractive because it suggests 
that a single value should not outweigh all others. The difficulty 
lies in the practical application of the principle. Can we articulate 
the suggested standard with sufficient precision so that it can 
be grasped by the police? Will a police officer readily know the 
seriousness of the offense which confronts him so he will know 
whether to use the "technical" or "liberal" rules of search and 
seizure? Can courts handily apply the proposed standard with 
uniformity and fairness? 

The exclusionary rule not only forbids the use of evidence 
secured in violation of law but also of evidence derived from 
that originally taken. The courts may not use the "fruit of the 
poisonous tree." 14 Thus courts have held that fingerprints taken 
after an unlawful arrest are inadmissible 15 and certain state- 
ments made by an arrested person after an illegal arrest are 
barred from the trial. 16 

The key question is, of course, what is the "fruit" of illegal 
activity. Does it mean that all evidence which the police would 
have "but for" the illegal conduct? If so, the sweep of the principle 
wil be wide indeed. The Supreme Court has rejected the "but 
for" test and said the question is whether "the evidence to 
which instant objection is made has been come at by exploitation 
of that illegality or instead by means sufficiently distinguishable 
to be purged of the primary taint. 17 

Complaints about the broad application of the "fruit of the 
poisonous tree" principle, not strictly based on considerations 
of deterrence, have been heard from some judges, including the 
provocative discussion of the problem by Mr. Justice White in 
his dissenting opinion Harrison v. United States, 18 and in Collins 
v. Beto 19 Judge Friendly argued that the judges should relate 
the reach of the principle to the seriousness of the police mis- 
conduct. 

Affecting the reach of the exclusionary rule is the doctrine of 
"harmless error," under which judgements are not to be reversed 
for error unless the error has prejudiced the defendant's case. 
The Supreme Court addressed itself to the "harmless error" 
question in Chapman v. California. Chapman and another had 
been convicted upon a charge that they had robbed, kidnapped and 
murdered a bartender. The California trial judge and the prose- 
cutor had repeatedly referred by the privilege against self- 
incrimination. 21 Mr. Justice Black's majority opinion in Chap- 
man first established that whether a federal consitutional error 
is harmless or not is an issue governed by federal law and that 
all constitutional errors are not necessarily harmful. But the 
Court held that : 

"before a federal constitutional error can be held harmless, 
the court must be able to declare a belief that it was harm- 



370 Report of the Task Force on Law and Law Enforcement 

less beyond a reasonable doubt. While appellate courts do 
not ordinarily have the original task of applying such a 
test, it is a familiar standard to all courts, and we believe 
its adoption will provide a more workable standard, al- 
though achieving the same result as that aimed at, in our 
Fahy case [holding that the error cannot be harmless where 
there is a reasonable possibility that the evidence com- 
plained of might have contributed to the conviction] . . ." 22 

Chapman's conviction was reversed. "Under these circumstances 
it is completely impossible to say that the state had demonstrated 
beyond a reasonable doubt the prosecutor's comments and the 
trial judge's instructions did not contribute to petitioner's con- 
victions." 23 

On June 2, 1969, however, the Supreme Court held in Harring- 
ton v. California 24 that a constitutional error in the trial of a 
criminal offense was harmles because there was "overwhelming" 
untainted evidence to support the conviction. The three dis- 
senters in Harrington and some legal scholars as well, believe 
that the deterrent effect of the exclusionary rule will ultimately 
be substantially vitiated by this approach to the question of 
harmless error. 

We have brought attention to minority views respecting the 
scope of the exclusionary principle because these views may 
gather adherents if exclusion proves to be the means whereby 
the obviously guilty may find safety against conviction of crimes 
of the greatest magnitude. We believe, however, the rule will 
endure though its ambit may be narrowed if it offers sanctuary 
for those who inflict the most brutal harms. 

A final point about the exclusionary rule and its relation to 
violence: we may guess that urge to destructive behavior is 
greatest when the actor is moved by a sense of frustration 
grounded in a feeling of injustice which he is unable to combat. 
The exclusionary rule, however, provides an outlet within the law 
for frustration stemming from the belief that the defendant 
has been treated unjustly by the police. By a motion to sup- 
press the defendant can in effect strike back at authority in the 
very proceeding which is aimed at convicting him. We now turn 
to other means, besides the exclusionary rule, of enforcing the 
substantive rules governing permissible police conduct. 

DAMAGE REMEDIES UNDER STATE LAW 

In general, a policeman is personally liable under state law 
for torts arising from his law enforcement activities. 25 Con- 
sideration of tort liability must proceed simultaneously on two 
fronts: effectiveness as a deterrent and utility as a mode of 



Securing Police Compliance With Constitutional Limitations 371 

redress. In order to eliminate violent response to alleged police 
misconduct, our society must achieve both of these objectives. 
The average citizen must be confident that police misconduct is 
the deviant rather than the normal behavior and that he can 
recover for injury suffered due to police improprieties. 

Causes of action theoretically encompassing police misconduct 
are false arrest, false imprisonment, malicious prosecution, tres- 
pass and assault and battery. The substantive elements of each 
will be briefly outlined in order to indicate the types of police 
abuse theoretically remediable. 

False arrest and false imprisonment, although differing in some 
minor particulars, 26 may both be defined as the unlawful restraint 
by one person of the physical liberty of another. 27 Although a 
police officer is not strictly liable for all unlawful arrests, the 
scope of the various defenses available to him has never been 
adequately defined. It is clear that a citizen may not hold him 
liable for an arrest illegal due to a defective warrant, for the 
officer may rely completely on a warrant or other process "fair 
on its face." 28 Surely there is no reason to hold him liable in such 
situations since he has taken all the steps the law requires of 
him. 

On the other hand, the officer is theoretically liable for warrant- 
less arrests unless the arrested person has committed an offense 
in his presence or the officer has "reasonable grounds" or "prob- 
able cause" to believe that the person has committed a felony. 29 
Since "probable cause" is a defense, the policeman has the burden 
of showing at least that "a man of ordinary care and prudence, 
knowing what the officer knows, would be led to believe or 
conscientiously entertain a strong suspicion that the arrested 
person is guilty of a crime, even if there is room for doubt." 30 

Although the Constitution 31 requires no less than "probable 
cause" to measure the lawfulness of the arrest either before 
trial, or after conviction when evidence upon which he was con- 
victed was allegedly seized incident to an unlawful arrest this 
standard is surely too high as a measure of civil liability. A 
policeman whose property and livelihood depend on split-second 
assessment of "reasonable grounds" or "probable cause" will 
surely err on the side of caution. In fact, an aspirant to the 
police force who is told that he must act upon peril of a court's 
passionles evaluation of such intensely uncertain decisions will 
surely forego such precarious employment. 

Despite the dangers of broad liability, the courts have generally 
been unwilling to expand defenses available to the police officer. 
Thus, there is a split of authority on the seemingly obvious 
question whether a policeman is liable for false arrest when the 
statute which defined his "probable cause" for making the arrest 
is subsequently declared unconstitutional. 32 And where the ques- 



372 Report of the Task Force on Law and Law Enforcement 

tion of subsequent invalidation is not involved, the courts have 
generally refused to allow the officer a subjective defense of 
good faith that he made an honest mistake in judgment in 
believing the arrest was justified. 33 The issue of good faith does 
become relevant with respect to mitigation of punitive or exem- 
plary damages, 34 but if the arrest was made without probable 
cause, as a matter of law, liability for false arrest follows by 
definition of the cause of action. 35 Parenthetically, an officer mak- 
ing an invalid arrest in bad faith is liable for malicious prosecu- 
tion in addition to false arrest or imprisonment. 36 

Predictably, however, the courts have utilized other devices 
to thwart the disastrous implications of literal enforcement. In 
the first place, procedural and evidentiary rules are employed to 
narrow the class of plaintiffs to whom the remedy is available. 
For example, proof of prior reputation is admissible to impeach 
plaintiff's credibility; 37 in one state, conviction for perjury or 
subornation of perjury disqualifies the potential plaintiff as a 
witness for any purpose ; 38 conviction of the offense for which the 
plantiff was illegally arrested establishes a presumption, in some 
states conclusive, of probable cause for the arrest; 39 and im- 
prisonment after conviction precludes the plaintiff practically, 
if not legally, from filing or prosecuting his suit. 40 Second, the law 
of damages is utilized for the same purpose. Thus, proof of prior 
reputation is also admissible to mitigate damages, either by 
demonstrating lack of any additional injury thereto 41 by showing 
that defendant had "cause" although not "probable cause" to 
arrest the plaintiff. 42 

By erecting such formidable barriers to recovery, however, 
courts threw the baby out with the bath. As a substantive matter 
they correctly chose to minimize the tort's deterrent value out 
of fear that it would be too effective. Yet they accomplished this 
result in a way which precluded recovery in appropriate cases by 
those for whom redress is essential. 

Malicious prosecution is the groundless institution of criminal 
proceedings by the defendant against the plaintiff. 43 The action 
is closely related to false arrest and the courts have sometimes 
confused the two. The basic difference lies in existence of a 
valid legal authority for the restraint imposed. If the defendant 
has complied with the requirements of the law by swearing out 
a valid warrant which is not void on its face, he cannot be liable 
for false arrest. 44 But he is liable for malicious prosecution if 
the plaintiff can show that he sought the arrest without probable 
cause, with malicious intent and that the proceedings were ter- 
minated in plaintiff's favor. 45 

Obviously, the tort is fairly limited. Since ill-will is its basis, 
it is not particularly useful in regulating police conduct. In 
addition the police have generally been held immune from such 



Securing Police Compliance With Constitutional Limitations 373 

suits when acting within the scope of their duties, 46 although it 
has been held that where the policeman himself initiates the 
complaint or where he concocts false evidence, he may be liable. 47 

Theoretically, any allegation of illegal invasion of a person's 
home or illegal seizure of property in his possession states a 
cause of action for trespass to land or chattels. As in the case 
of false arrest, it is clear that a policeman will not be liable for 
searches pursuant to a defective warrant issued by a court of 
competent jurisdiction since he may assert a defense of "legal 
process" when the warrant is "fair on its face." 48 Because of 
the dearth of police tort actions asserting a trespass as the sole 
ground of recovery, 49 however, there has been no adequate state- 
ment of the officer's defense where the search was made without 
a warrant. In any event, as a practical matter the trespass remedy 
has been "completely impotent" 50 as a means of deterrence or 
redress because of its damage limitation. 51 

Although injury is not an element of the plantiff's cause, the 
measure of damages is simply the injury to physical property, 52 
with the possibility of punitive damages in some states if the 
plantiff is able to show malice or ill-will on the part of defend- 
ant. 53 Thus, unless the erring officer has been carelessly destruc- 
tive or overtly ill-willed, plaintiff's victory is only nominal. Sure- 
ly, such a tort offers little inducement to sue, and where redress 
is really needed, the plaintiff usually has a cause for battery or 
false arrest. 

Assault and battery, however, has not been much more useful. 
At common law, a policeman has no more privilege to exercise 
force than a private citizen. Like any other person he may 
exercise the amount of force he reasonably believes necessary 
to defend himself or to effect the lawful arrest of a resisting or 
fleeing suspect. 54 He may likewise employ force when necessary 
to prevent a crime if he reasonably believes the suspect is 
participating or is about to participate in a breach-of-the-peace 
misdemeanor, riot or felony. 55 For any use of force beyond 
these limitations, the officer must respond for all damages proxi- 
mately resulting, both to the individual pursued and to the person 
and property of innocent bystanders) 56 Nevertheless, police 
brutality actions have rarely been successful except when ap- 
pended to false arrest actions. 57 

Even though substantive tort law thus theoretically permits 
recovery for some egregious acts of police misconduct, the 
chances of adequate recovery are so slim that there is no induce- 
ment to sue. 

The initial defect in civil recovery both as a means of redress 
and as deterrent to police misconduct is the cost of suit. As the 
Wickersham Commission noted in 1931 : ". . . in case of persons 
of no influence or little or no means the legal restrictions are not 



374 Report of the Task Force on Law and Law Enforcement 

likely to give an officer serious trouble." 58 Unfortunately, litiga- 
tion is most costly, and consequently least attractive, in cases 
where redress is most needed brutality cases in which recovery 
is likely to depend on the resolution of disputed factual issues 
necessitating a protracted trial. 

If lower class litigants are to bring suit at all, their costs must 
be borne either by Legal Aid offices or lawyers operating on 
contingent fee. Yet, neither source can handle a large volume of 
cases and must of necessity choose only those most promising of 
success. Unless the state or local government bears at least part 
of the cost of litigation, regardless of outcome for example 
by hiring an attorney to represent indigents aggrieved by police 
misconduct civil suit will be too sporadic to function adequately 
as either a deterrent or a means of redress. 59 

Time is a most formidable barrier to suit, especially among 
the poor. Because of crowded court dockets, years may pass 
before a case is decided. The prospect and a limited one at 
that of relief at some distant time is probably not strong enough 
to evoke an initial commitment, especially in light of the costs 
which might accrue. It should also be added that the protracted 
nature of litigation is also a major reason why civil suit is 
currently an inadequate substitute for or deterrent to violence as 
an outlet for citizen grievances against the police. A prospect, or 
even a promise, of damages two years hence is not likely to 
mitigate the incendiary effect of gross police misconduct which 
often has immediately preceded civil disorder. 

Another problem is the difficulty of establishing damages even 
if liability is proven. As early as 1886, the Supreme Court noted 
that recovery of a sum sufficient to justify a police tort action is 
dependent on the "moral aspects of the case." 60 But the usual 
plaintiff lacks the "minium elements of respectability" 61 to claim 
or recover for injury to reputation. Similarly, minority plain- 
tiffs do not often recover punitive damages from predominantly 
middle-class juries, especially when such damages cannot be dis- 
guised as reparation for injury to reputation. Thus, since re- 
covery is limited to actual damage for the most abused class of 
citizens, the Wickersham Commission conclusion, that a civil 
action has little deterrent value where it is most needed, is still 
true today. 

To this point, we have endeavored to show that state civil 
suits are inadequate either to placate most citizens aggrieved 
by police misconduct or to deter police abuse. The serious ques- 
tions remain whether such suits would become effective deterrents 
if the stated defects were cured and to what extent this result 
would be achieved to the detriment of legitimate law enforce- 
ment efforts. 

Even if the possibility and extent of recovery were substan- 



Securing Police Compliance With Constitutional Limitations 375 

tially increased, the vindicated plaintiff would often be possessed 
of a meaningless judgment : police are not wealthy nor are they 
often bonded. 62 More important, if liability attached too readily 
or if there were any appreciable possibility that it would penalize 
honest mistakes, law enforcement would surely suffer. Complete 
individual liability for tortious conduct would not only discourage 
persons from becoming police officers but would also severely 
circumscribe the vigor and fearlessness with which they perform 
their duties. 

With increasing frequency, commentators have urged that this 
dual defect unredressed injury and deterrent overkill be cured 
by municipal or state liability for police torts committed in the 
performance of their duties. 63 Except for the additional depletion 
of already barren state and local treasuries, the effects of govern- 
mental liability would be uniformly beneficial. It would surely 
facilitate redress and is a necessary condition for effective deter- 
rence. To put it bluntly, it would slap the right wrists i.e., at the 
level where police policy is made. The Department, under pres- 
sure from fiscal authorities, would very likely establish and 
enforce firmer guidelines through internal review and purge 
recurrent offenders. 

On the other hand, it is arguable that governmental liability 
for police torts is not a sufficient condition for effective deterrence. 
Some police illegality is an inevitable concommmitant of law 
enforcement ; 64 and departmental policymakers, according to their 
own scheme of values, may find it prudent to violate now and 
pay later. Such a decision is especially likely in situations where 
the exclusionary rule does not apply and there is no other deter- 
rent; i.e., where prosecution is not contemplated and conviction 
is not the motivating factor. 

In any event, a majority of states have refused to waive gov- 
ernmental immunity in police tort cases 65 despite repeated urgings 
by a multitude of legal scholars. 66 And it is unlikely that they will 
do so at least until the scope of liability is sufficiently limited. 

Thus, the most fruitful approach is to abandon delusions of 
broad deterrence and substantial redress and to concentrate on 
the grosser forms of abuse where the tort remedy can be useful. 
Actual injury caused by serious breaches of duty committed in 
utter disregard of proper standards of police conduct should be 
redressed by the courts in tort suits. The imperatives of such 
an approach are utilization of a good faith defense and more 
extensive governmental assumption of liability. 

DAMAGE REMEDIES UNDER FEDERAL LAW 
In addition to his state common law tort remedies, a citizen 



376 Report of the Task Force on Law and Law Enforcement 

aggrieved by police misconduct may have a cause of action 
under 42 U.S.C. 1983 which provides: 

Every person who, under color of any statute, ordinance, 
regulation, custom, or usage, of any State or Territory, 
subjects, or causes to be subjected, any citizen of the United 
States or other person within the jurisdiction thereof to 
the deprivation of any rights, privileges, or immunities se- 
cured by the Constitution and laws, shall be liable to the 
party injured in an action at law, suit in equity, or other 
proper proceeding for redress. 

The statute in its present form is substantially unchanged from 
its passage in 1871 as the civil section of what is popularly 
known as the Ku Klux Act. 67 It is clear that this statute orig- 
inally was designed to inhibit and give a remedy for the wide- 
spread abridgement of Negro rights that characterized the 
Reconstruction period in the South. Recently, however, the Su- 
preme Court has read the broad statutory language to authorize 
civil tort suits in federal courts against state law enforcement 
officers, 68 and a steady stream of such cases now flows through 
the lower federal courts. 69 

Section 1983 was rarely utilized until the 1940s when two 
significant Supreme Court cases, United States v. Classic 70 and 
Screws v. United States, 11 revived it from its century-long 
dormancy. In Classic the Supreme Court rejected a contention 
that "under color of law" required action taken pursuant to 
a state statute and held instead that "misuse of power, possessed 
by virtue of state law and made possible only because the wrong- 
doer is clothed with the authority of state law, is action taken 
'under color of state law." 72 Thus it became arguable for the 
first time that any illegal action of a law enforcement officer 
could fit within the statutory language of what is now Section 
1983 i.e., any act of a man wearing a badge would be action 
"under color of law." This reading of the Classic opinion was 
reenforced by the Court's 1945 decision in Screws v. United 
States, which equated "under color of law" with under pretense 
of law. 73 

Both of these cases had dealt with the scope of the companion 
criminal provision to Section 1983, and it was in 1961 that the 
Court in Monroe v. Pape, 74 finally breathed life into the civil 
provision. 

In that landmark case, James Monroe alleged that 13 Chicago 
policemen broke into his home at 5 :45 a.m., routed his whole 
family from bed, ransacked every room in his house, detained 
him at the police station for 10 hours on "open charges," and 
finally released him without filing criminal charges against 
him. The Supreme Court, holding this complaint actionable un- 



Securing Police Compliance With Constitutional Limitations 377 

der Section 1983, adopted the Screws and Classic definition of 
"under color of law," and noted that even action wholly contrary 
to state law is nevertheless action "under color of law" if the 
policemen are clothed with the indices of authority. Moreover, 
the Monroe majority held that since Section 1983 does not 
include the word "willfully," a complainant need neither allege 
nor prove a "specific intent to deprive a person of a federal 
right." 75 Finally, the Court reasoned that since one of the pur- 
poses of Section 1983 was to afford a federal right in federal 
courts, the federal remedy is supplementary to any existing state 
remedy and the state remedy need not be exhausted before its 
invocation. 

The major issue that remained after the sweeping Monroe 
decison was whether some degree of bad faith or other fault 
in the deprivation of the citizen's constitutional rights is an 
element of the federal cause of action under Section 1983. The 
court confronted this issue in its 1967 decision in Pierson v. 
Ray. 1& In that case petitioners, a group of Negro and white 
clergymen were arrested for sitting-in at a segregated inter- 
state bus terminal in Mississippi. Subsequent to their arrest and 
conviction, the statutory provision upon which their arrest had 
been based was declared unconstitutional and their cases were 
remanded and later dropped. In their subsequent suit for false 
arrest and violation of Section 1983, the Supreme Court pro- 
claimed that the defenses of "good faith and probable cause" 
were available to the policemen-defendants under Section 1983 
just as they were under Mississippi law of false arrest. Although 
the Pierson decision established that policemen are not strictly 
liable for unconstitutional activity, the scope of the defenses 
which it recognized is not yet clear. On the other hand, the 
federal defenses could be tied to state law, thereby attaching 
only in those states which allow a good faith defense in the 
subsequent invalidation context, as did Mississippi in Pierson. 
On the other hand, it would appear that the Court contemplated 
something broader a federal standard of fault not tied to state 
law or to any particular factual context, and most observers 
have so assumed. 

Because of the difficulty of segregating "probable cause" 
from the lawfulness of the conduct itself, and because "good 
faith" suggests a completely subjective standard, we suggest 
that these labels are inappropriate tools for defining the proper 
defense in the present context. The purpose of a defense in 
a police tort suit, under state law or under Section 1983, should 
be to immunize conduct illegal only because of an honest mis- 
take in judgment or an unforeseeable change in the law. The 
proper standard, and one which both state and post-Pierson 
lower federal courts in fact have been applying, 77 is whether 



378 Report of the Task Force on Law and Law Enforcement 

the policeman's response was "reasonable" in light of the cir- 
cumstances, both legal and situational, as he perceived them. 

An additional question remaining after Pierson is the scope 
of police activity covered by the "rights, privileges, or immuni- 
ties" clause of Section 1983. It clearly covers illegal searches 
or seizures and unconstitutional arrests. And there is some 
evidence that it also covers gross acts of police brutality, con- 
duct which denies due process because it shocks the conscience. 78 
In any event, however, Section 1983 cannot be employed to 
regulate the day-to-day conduct of the policeman on patrol 
the seemingly trivial acts of harassment and misunderstanding 
which in gross, may elicit violence against the police by ghetto 
residents. 79 

Nevertheless, Section 1983 like the state tort remedy 
is a potentially useful device for compensating the individual 
citizen substantially injured by unlawful police action. To be 
sure, an action under Section 1983 is subject to all the intrinsic 
weakness of any tort remedy limited personal assets of the 
police, no provision for payment of damages from municipal 
or state funds, the expense of maintaining the suit, the difficulty 
of establishing damages, the disadvantaged position of the usual 
plaintiff in the community, and the threat such assessments 
against individual policemen pose to vigorous and efficient law 
enforcement efforts. 80 Despite these inherent limitations, how- 
ever, Section 1983's federal remedy for deprivation of constitu- 
tional rights does permit compensation of citizens whose person 
or property is significantly damaged due to clearly unlawful 
police activity. 

Many commentators on Section 1983's use to control police 
conduct claim its application must be limited to the egregious 
case so that it does not hamper legitimate law enforcement by 
penalizing the policeman for mere error in judgment and honest 
misunderstanding. 81 We agree with this goal for the federal 
remedy as well as the state remedies, but argue that the present 
"probable cause and good faith" defense available to the police 
under Pierson v. Ray as applied in subsequent cases, together 
with the law of damages under this section, in fact limit the 
scope of the remedy. Our conclusion, then, must be that, while 
the federal civil damages remedy cannot be a regulator of 
everyday police conduct, it can provide a remedy to individuals 
severely injured by outrageous instances of police illegality. 82 
As an important and essential supplement to other devices for 
controlling police violence, it should be implemented at the 
federal level by rationalized damage rules and docket priority 
and at the state level by municipal asumption of liability and 
cost of suit. 



Securing Police Compliance With Constitutional Limitations 379 

INJUNCTION 

The injunction offers the prospect of immediate relief from 
unconstitutional conduct and a powerful deterrent from engag- 
ing in that specific conduct. Simply as a matter of judicial 
equitable prerogative, such relief is easily justified. The remedies 
at law for this threatened or continuing deprivation of liberty 
are at present clearly inadequate except in a limited context, 
a conclusion emphatically asserted by the Supreme Court in Mapp 
v. Ohio 8 * and reaffirmed in our discussion above. The injury may 
surely be irreparable, both to the plaintiff and the community. 84 

But injunctions issued against individual police officers to 
refrain from future violations, in addition to raising much 
the same substantive and practical problems noted above in con- 
nection with damages, also present an insuperable enforcement 
problem. The order must cover all types of illegal conduct or 
it cannot operate fairly; yet if an injunction issued upon proof 
of any illegality whatever, it would replace internal police 
disciplinary procedures with inflexible judicial oversight of 
the conduct of all police officers. Since the court's only sanction 
is contempt, it would be extremely heavy-handed and even more 
disruptive of legitimate law enforcement efforts than effective 
and broad damage remedies. Such a remedy represents the worst 
of all possible worlds. 

Thus, instead of utilizing the remedial force of the injunc- 
tion in a way destructive of law enforcement, a court must 
look to those who make the rules which the individual police 
officers are supposed to obey. The goal of injunctive relief 
should be to induce the Departments to establish guidelines con- 
sistent with constitutional mandates and to use their internal 
disciplinary procedures to enforce these rules. Whether this 
goal can be achieved by equitable relief issued by either state 
or federal courts is the subject of this section. 

The various state courts which have faced the question 
have left no clear statement of the law. In fact, there seem to 
be two separate lines of authority. Some courts have emphasized 
the institutional irresponsibility of injunctive interference with 
law enforcement activity. 85 Under this view, the plaintiff should 
be left to whatever civil remedies at law he has available or 
to his defenses in a criminal prosecution should one be brought. 
Other courts, perhaps a majority, have felt no institutional 
hesitations, but have placed heavy burdens on the plaintiff to 
show clearly lack of a reasonable basis for the allegedly illegal 
police actions and the presence of malice or bad faith. 86 Thus, 
even these courts have interfered only where the police are 
pursuing a clearly illegal course of conduct against an identi- 
fiable plaintiff or group of plaintiffs. 87 



380 Report of the Task Force on Law and Law Enforcement 

Section 1983, discussed above, also authorizes the federal 
district courts to hear suits in equity against police for conduct 
invading constitutional rights. 88 Such suits have rarely been 
brought, however. 89 The United States Supreme Court approved 
the remedy in Hague v. C7O 90 in 1939, where it affirmed an order 
against a Mayor, Chief of Police and others enjoining them 
from continuing an antiunion campaign of harrassing arrests, 
deportation of organizers and suppression of union circulars 
and public meetings. Of the lower court decisons which have 
employed this remedy, three enjoined blatant infringements of 
First Amendment rights committed under the guise of mainte- 
nance of public order but falling short of arrest of the speakers ; 91 
and two, like Hague itself, enjoined schemes of conduct including 
attempts to enforce the law against plaintiffs but which never- 
theless inhibited First Amendment rights. 92 Only two cases have 
involved injunctions for violations of criminal safeguards with 
no First Amendment overtones. 

In the first, Refoule v. Ellis?* the police had four times detained 
the plaintiff without a warrant for extended periods of time, ques- 
tioned him in relays, utilized force to coerce a confession and 
conducted other similarly objectionable activities. The Georgia 
District Court issued an injunction against further warrantless 
detentions, questionings, beatings and other specific illegal 
conduct. In Lankford v. Gelston?* the Fourth Circuit ordered 
the District Court to enjoin the Baltimore Police Department 
from continuing a thirteen-day search of ghetto residences 
without either warrant or consent based solely on anonymous 
phone tips. 95 

Refoule and Lankford are the only reported cases suitable for 
testing the validity and scope of the power of the federal courts 
to interfere with state and local law enforcement activities. 
In these cases, the courts acknowledged the principles of not 
interfering with administration of the criminal law, 96 but af- 
firmed that injunctions against such clear violations of constitu- 
tional rights could not possibly interfere with legitimate law 
enforcement activities. 97 And the courts were surely correct. 
These cases, so long as they could be brought to judicial attention, 
cried out for relief. Any police chief or officer continuing the 
illegal conduct in defiance of the court's order would have been 
deserving of a contempt citation. 

The common elements of such egregious cases illustrate both 
the validity of the remedy and the limited scope of its employ- 
ment: the department must be engaged in a clearly unconstitu- 
tional course of conduct directed against an identifiable person or 
class of persons. 

Nevertheless, on recent commentator 98 has urged that the 
injunctive remedy be utilized not only to prohibit deliberately 



Securing Police Compliance With Constitutional Limitations 381 

ordered violations of constitutional rights as in Lankford and 
Refoule, but also to require affirmative actions by Department 
superiors to prevent recurring violations which they have 
"passively tolerated." Although this proposal successfully iden- 
tifies the crucial need in this area the effective operation of 
departmental disciplinary procedures its attempt to convert the 
courts into supervisors of police discipline is misguided. 

Apart from a difficult problem of statutory authorizaiton, 
the basic substantive defects are, first, definition and proof of 
violation, and, second, order-framing and sanction. On the first 
issue, the dispositive inquiry is whether the departmental su- 
periors have taken adequate steps to enforce compliance with 
constitutional mandates. Such an evaluation would encompass 
policy guidelines, complaint mechanisms, and disciplinary pro- 
cedures ; yet judicial review of the adequacy of complaint process- 
ing and disciplinary procedures would be neither colorably judi- 
cial nor susceptible to remotely managable standards." 

As to the second question order-framing, the author pro- 
poses that the court first issue a general order directing the 
Commisisoner to correct the pattern of tolerated violations by 
altering his enforcement procedures in a way which achieves 
the desired result with a minimum adverse effect on the morale 
and efficiency of his Department. 100 The author assumes that a 
good faith effort by a capable Commissioner will quickly cure 
the ill and relieve the court of the difficult burden of making 
good its promise to reduce misconduct. Unfortunately, however, 
failures will be widespread, and the courts will sometimes have to 
frame a second, more specific order, itself establishing the 
Departments disciplinary procedures; 101 and the author himself 
acknowledges that "such orders would seriously interfere with 
the Police Commissioner's management of his department and 
a court should make every effort to minimize the dangers inherent 
in such interference." 102 

In summary, although state cases are ambiguous and federal 
cases are sparse, it would appear that the injunction at either 
level is another useful fringe remedy. Where immediate relief 
from a clearly unconstitutional course of conduct against identi- 
fiable persons is prayed for, the injunction should issue. Other- 
wise the courts should not interfere directly with the enforcement 
of the criminal law. 

CRIMINAL SANCTIONS 

Although both state and federal statute books include criminal 
sanctions for illegal police conduct such as false arrest and 
trespass, they are rarely employed. 103 It is well established that 
in criminal prosecutions for false arrest the defendant must 



382 Report of the Task Force on Law and Law Enforcement 

have criminal intent and that his good faith is a complete de- 
fense. 104 At common law no trespass to property is criminal 
unless it is accompanied by a breach of the peace. 105 Moreover, 
most states require criminal intent as an element 1G6 of the crime, 
either by statute or by judicial interpolation where the statute 
itself is silent. 107 Where intent is an element, the defenses of 
good faith 108 or color of title will lie unless there has been a 
breach of the peace. 109 

The dearth of case law on the subject indicates the impotency 
of criminal prosecution of police officers as a remedy for their 
misconduct. Professor Foote, a leading authority on judicial 
remedies against the police, could find only four cases all for 
false imprisonment for the period 1940-55. no We have been 
unable to unearth any additional reported cases for the subse- 
quent 13 years. No authoritative explanation has been given for 
the absence of prosecution for police offenses, but the reasons 
are not difficult to surmise. Prosecutors are probably reluctant 
to enforce these dormant criminal sanctions against police of- 
fenses because they anticipate, in our view correctly, a detri- 
mental effect on law enforcement which is the goal of both 
departments, and because they consider the punishment too 
harsh. 

As a supplement to state criminal remedies for police mis- 
conduct, 18 U.S.C. 242 imposes a federal penalty on anyone 
who, under color of law, willfully deprives a person of his 
constitutional rights. 111 Because Section 242 is a criminal statute 
it has been narrowly construed. The Supreme Court in Screws v. 
U. S., n2 upholding this statute against an attack that it was 
void for vagueness, interpreted the statutory requirement of 
willful violation to mean that the defendant must have had or 
been motivated by a specific intent to deprive a person of his 
constitutional rights. 113 

This narrow construction of the statute together with the 
reticence of prosecutors to bring actions against the police 114 
have rendered Section 242 an impotent deterrent to police 
violence. Although there have been a handful of cases brought 
under this provision and some convictions, 115 this sanction 
has been applied only to the most outrageous kinds of police 
brutality. 116 Because the application of criminal sanctions to 
police misconduct is justified only when the policeman is clearly 
acting as a lawless hoodlum, 117 it is totally unrealistic to antici- 
pate that this federal criminal provision will ever be transformed 
so as to control the conduct of the police. 

Unlawful search and seizure, malicious procurement of a 
warrant and excess of authority under a warrant have been 
punishable as misdemeanors under federal law for decades. 118 
Yet the annotations following these statutory provisions dealing 



Securing Police Compliance With Constitutional Limitations 383 

with illegal police activity reveal no decided cases. That these 
sanctions have been completely ignored for so long graphically 
underscores the need for remedies other than state and federal 
criminal statutes to deter and if necessary punish arbitrary 
police conduct. 

As a final part of this synopsis of criminal provisions affecting 
the police, some mention should be made of the long-standing 
suggestion that judges use their contempt power to discipline 
offending officers. 119 The contempt sanction, we have concluded, 
is much too harsh. Moreover, since judges are probably institu- 
tionally incapable of discovering on their own motion instances 
of police misconduct, this sanction would be applied only when 
the given facts in an adversary proceeding clearly indicate 
unlawful police action. Yet we already have better legal remedies 
for these egregious instances of police violence. Finally, since 
the proposed "contempt of the Constitution" 12 is an indirect 
criminal contempt, the accused police officer would probably have 
a right to a separate jury trial. 121 The prospect of a second trial 
militates further against stretching the contempt power to these 
frontiers never envisioned for it. 

To this point, we have concluded that the judiciary with 
some changes in substance and procedure is the appropriate 
institution to deter and redress clear cases of police miscon- 
duct. The exclusionary evidence rule is a just and potent weapon 
to enforce constitutional mandates where a conviction is achieved. 
State and federal damage remedies, if rationalized and adequately 
facilitated, can deter and redress egregious and reckless police 
misconduct unattended by successful conviction. And injunctive 
relief may prove valuable in limited contexts where there has 
been an unlawful course of police conduct. 

At the same time, we have also concluded that continuous 
administrative surveillance is better equipped than sporadic 
judicial oversight to cope with less extreme forms of police 
misconduct conduct which is imprudent though not outrageous. 
Fair and speedy extra-judicial review of allegations of police 
harassment and other incendiary police practices could provide 
an essential outlet for citizen frustrations and dispel the wide- 
spread ghetto belief that police are characteristically arbitrary. 

INTERNAL REVIEW 

Every major police department has formal machinery for 
processing citizen complaints. To the extent that such machinery 
is fairly and effectively invoked, it can discipline misbehaving 
officers and deter the misconduct of other policemen. But in prac- 
tice, internal review is largely distrusted by outsiders 122 for 
a variety of reasons. 



384 Report of the Task Force on Law and Law Enforcement 

For internal review procedures to be meaningufl, complaints 
against the police must not only be readily accepted, but actively 
encouraged. Yet much criticism of police review has been directed 
at the hostile response of some departments to civilian complaints. 
In some instances, complex procedural formalities discourage 
filing of grievances. 123 Some departments will disregard anony- 
mous telephone complaints and a few require sworn statements 
from complainants. 124 Allegations of police brutality, in particu- 
lar, are often regarded as affronts to the integrity of the force 
which demand vigorous defense. 125 Accordingly, certain depart- 
ments have in the past charged many complainants with false 
reports to the police as a matter of course, 126 or have agreed to 
drop criminal charges against the aggrieved party if he in turn 
abandons his complaint. 127 While most departments have abol- 
ished such practices, many potential allegations of police mis- 
conduct are apparently still withheld because of fear of retalia- 
tion. 128 

An impartial acceptance of all complaints against the police 
is necessary to instill confidence in a police review board. In 
fact, an increased volume of complaints filed with the police 
might often indicate that a department is winning rather than 
losing the trust of a community. To this end, the Police Task 
Force of the Crime Commission recommended that police depart- 
ments accept all complaints from whatever source, process com- 
plaints even after complainants have dropped their charges, and 
advertise widely their search for police grievances of all types. 129 
Many urban police departments have apparently adopted or 
already complied with these proposals. 130 

Although nearly all departments investigate all complaints, 
about half entrust the task exclusively to the local unit to which 
the accused officer was assigned. 131 The central organization 
usually supervises such investigations in varying degrees, but 
the relative autonomy of local units in gathering evidence con- 
cerning a complaint can both strain objectivity and engender 
further police misconduct. 132 Since investigative findings deter- 
mine whether a complaint will be processed further or dismissed 
as groundless, a local investigating team is afforded the oppor- 
tunity to clear its working comrade. Accordingly, the investiga- 
tion may at times be designedly haphazard, or the complainant 
may be harassed into dropping his charges or a potential witness 
may be browbeaten into not testifying. 133 

Special internal investigative units for complaints of police 
misconduct are common to many departments, and should be 
the established norm, particularly for large urban forces. Such 
internal special units would presumably face less conflict of 
interest than local units in dealing with a policeman's conduct. 
An outwardly more objective inquiry might reduce grounds 



Securing Police Compliance With Constitutional Limitations 385 

for public suspicion of police investigation of their own mis- 
conduct. 

A sizable minority of departments do not provide formal ad- 
versary hearings for allegations of even the most egregious police 
misconduct. 134 In such instances, the police chief or commissioner 
will usually determine from investigative findings whether an 
officer should be disciplined. In organizations where hearings are 
conducted before a police review board, the format varies. It 
has been found that almost half of departments that provide 
hearings hold them secretly, and one-fifth deny the complainant 
rights to cross-examine witnesses or bring counsel to the hear- 
ings. 135 Such secrecy and lack of procedural safeguards inevitably 
foster suspicion about the fairness of internal review. 136 Fur- 
thermore, the recommendations of the review boards, which 
usually are implemented by the police chief, are seldom disclosed 
to either the public or the complainant. 137 Such a practice deprives 
hearings of their value in promoting community relations. For 
a full explanation of a dismissed complaint could publicly vindi- 
cate the police officer who in fact behaved responsibly, and the 
news of actual disciplinary action could placate citizen indigna- 
tion over police misconduct. Thus if hearings are open to the 
public, quasi-judicial trial procedures are followed, and review 
board decisions fully publicized, the popular image of the police 
could be profitably enhanced. 138 

A major criticism of internal review is that it seldom- pro- 
duces meaningful discipline of persons guilty of police miscon- 
duct. 139 Even when an officer is disciplined, the punishment is 
often so light as to be a token that aggravates rather than 
satisfies the grievant. 140 By contrast, many departments impose 
relatively severe penalties for violations of minor internal regu- 
Itaions. Thus tardiness or insubordination may warrant an auto- 
matic suspension that is more onerous than the sanction for 
physical abuse of a citizen. 141 The frequency of rigorous internal 
discipline for minor departures from departmental regulations 
magnifies the relative failure of police departments to discipline 
an officer for abusive treatment of a citizen. The inference is 
that internal review is more attuned to enforcing organizational 
disciplines than redressing citizen grievances. 

Internal review is undoubtedly the quickest and most efficient 
method of regulating the conduct of peace officers. 142 It is perhaps 
axiomatic that organizational superiors are in the most favorable 
position to control their subordinates. Similarly, a police chief 
is probably best qualified to formulate the standards for police 
conduct. He also can utilize the best available investigative 
facilities plus his unique expertise in police operations to mete 
out approprate disciplinary measures. A punishment decreed by 
an insider is likely to be accepted by both the miscreant officer 



386 Report of the Task Force on Law and Law Enforcement 

and the department as a whole. On the other hand, control im- 
posed from the outside is bound to be more sporadic and hence 
less effective than persistent self-discipline. Furthermore, con- 
stant second-guessing by strangers might undermine police 
morale and induce the kind of bureaucratic inertia that seems to 
plague several other governmental agencies sapped of their 
local autonomy. 

Despite the inherent advantages of self-regulation, however, 
its difficulties in projecting an image of fairness with regard 
to complaints from the citizenry suggets that it should be sup- 
plemented by some form of external review. Whether or not 
internal review procedures are conducive to objective inquiry, 
the mechanism is seldom invoked by those minority groups which 
encounter the police most directly and frequently. 143 Since the 
police cannot redress an aggrieved citizen with money damages, 
the conspicuously rare punishment of policemen on the basis 
of outside complaints can create the popular impression that 
police review is a sham designed to appease rather than relieve 
the victims of police violence. Furthermore, this failure to win 
public approval deprives internal review of its efficacy as a forum 
for vindicating officers slandered by groundless complaints. 144 

The concept of internal review is also limited by the degree 
to which a departmental superior can extricate himself from the 
conflict of interest he faces in judging citizen complaints against 
the police. To be fair, he must suppress a natural feeling of 
loyalty toward his subordinates. On the other hand, he faces the 
possibility that concession to citizen demands will undermine the 
morale of his organization. Thus even the conscientious police 
commissioner may encounter difficulty in properly handling 
complaints. Police departments have a self-interest like any other 
entity, and if a police department tacitly overlooks misconduct 
by its patrolmen, then such a department cannot be expected to 
condemn itself publicly through internal review mechanisms. 145 
In such a case, only an external organization can offer con- 
sistently impartial and objective review of allegations of police 
misconduct. 

CIVILIAN REVIEW BOARDS 

Dissatisfaction with both internal and judicial processing of 
police misconduct complaints prompted a few cities to experiment 
with civilian review boards. These boards, sitting independently 
of the police structure, adjudicated the merits of citizen griev- 
ances, either dismissing them as groundless or recommending 
that departmental superiors discipline the miscreant officer. Such 
external review was designed to project an appearance of fairness 
unattainable by internal mechanisms. At the same time, the 



Securing Police Compliance With Constitutional Limitations 387 

civilian review boards were able to pass judgment on discour- 
teous or harassing police practices which do not constitute 
judicially remediable wrongs but which nevertheless infuriate 
the grievant and intensify community hostility toward the police. 
Yet the boards did not purport to displace preexisting channels : 
the ultimtae power to discipline remained with the police them- 
selves, and the courts' jurisdiction over complaints was never 
abridged. 

Civilian review boards have operated at one time or another 
in Philadelphia, New York City, Washington, and Rochester. 
The Washington board, however, could entertain only complaints 
referred to it by the police commissioner, 146 and the jurisdiction 
of the Rochester board was limited to allegations of unnecessary 
or excessive force. 147 Therefore, the New York and Philadelphia 
experiences contribute more expansively to an examination of 
civilian review. 

The New York Civilian Complaint Review Board (CCRB), 
created by executive order in July 1966 and abolished by popular 
referendum four months later, consisted of four civilians ap- 
pointed by the Mayor and three policemen named by the police 
commissioner. 148 The CCRB was empowered to accept, investi- 
gate, and review any citizen complaints of police misconduct 
involving unnecessary or excessive force, abuse of authority, dis- 
courteous or insulting language, or ethnic derogation. 149 Upon 
receipt of a complaint, the board directed its specially assigned 
investigative staff of police officers to interview the complainant, 
the accused policeman, and any witnesses. If the investigation 
report revealed no serious dispute on the facts, a conciliation 
officer attempted to negotiate an informal settlement. If the police- 
man had acted properly under the circumstances, the board 
explained to the citizen that his grievance stemmed from a mis- 
understanding of the situation or of police duties. Where the 
officer had been mistaken or neglectful, or the injury had been 
minimal, the complainant was assured the misconduct had been 
amply considered and would not be repeated. Where both parties 
were at fault or where the citizen was particularly incensed, 
a joint confrontation of the parties was arranged which would 
hopefully result in mutual understanding and apologies. 150 If a 
complaint was conciliated or deemed unsubstantiated, the accused 
officer was expressly notified that the complaint would not appear 
on his record. 151 

When the seriousness of the alleged offense or a heated dispute 
over the facts precluded informal conciliation, the CCRB con- 
ducted a formal hearing, at which both complainant and police- 
man had rights to representation by counsel and cross-examina- 
tion of witnesses. 152 The board made findings of fact, upon 
which it either dismissed the complaint or recommended 



388 Report of the Task Force on Law and Law Enforcement 

"charges" to the police commissioner. No specific disciplinary 
measures emerged from the CCRB, whose final rulings recom- 
mended further departmental consideration of a complaint rather 
than punishment. 153 

The New York CCRB elicitsd 440 complaints during its 
4-month existence, as compared to the approximate annual 
average of 200 received by the police-operated Complaint Review 
Board prior to 1966. 154 Nearly half the grievances alleged unnec- 
essary force, but a substantial number involved discourtesy and 
abuse of authority. 155 Significantly, many of the complaints 
emerged not from the criminal context, but from police involve- 
ment in private or family disagreements. 156 That only half the 
complaints were filed by members of minority groups could be 
attributed to insufficient publicity and the CCRB's short tenure. 157 
Of the 146 complaints ultimately processed by the CCRB, 109 
were dismissed after investigation, 21 were conciliated, 11 were 
referred elsewhere, 4 culminated in recommended "charges," 
and one resulted in a reprimand from the board. 158 

The brevity of the New York experiment defies meaningful 
evaluation, but the Police Advisory Board (PAB) operated con- 
tinually in Philadelphia from 1958 through 1967, when its normal 
activities were enjoined. The PAB closely resembled the CCRB, 
except that the Philadelphia board had no specially assigned 
investigative staff, held open hearings, lacked power to subpoena 
witnesses, and recommended specific disciplinary measures to 
the commissioner for valid complaints. From 1958 until mid- 
1966, the PAB received 571 citizen complaints, of which 42 
percent alleged brutality, 22 percent harassment, 19 percent 
illegal entry or search, and 17 percent other misconduct. 159 
During this period, the PAB recommended 18 reprimands, 23 
suspensions, 2 dismissals, and 3 commendations of police officers, 
and 33 expungings of complainants' arrest records. 160 With few 
exceptions, the police department coopertaed by implementing 
the board's proposals. 161 

The record of the PAB reveals several positive accomplish- 
ments. It evidently achieved some degree of support from the 
minority communities where police presence was most volatile; 
one-half of all complaints were filed by Negroes in a city that was 
three-quarters white. 162 Dispositions most frequently emerged 
from informal settlements. 163 This conciliation process, it is pre- 
sumed, permitted grievance resolutions acceptable to both citizen 
and officer with a minimum of the adversary tensions normally 
incident to an open formal hearing. Furthermore, the complain- 
ant would often be uninterested in seeing the policeman disci- 
plined ; he may have sought only an apology or eradication of an 
unjustified arrest record. 

The PAB also submitted an annual report to the Mayor, which 



Securing Police Compliance With Constitutional Limitations 389 

allowed broader expression of citizen judgment on police policies 
than would usually flow from the case by case approach. The 
police department followed the 1962 report's suggestion that 
definitive guidelines for the proper use of handcuffs be estab- 
lished. 164 In 1965 the PAB requested that the police rectify 
apparent patterns of physical mistreatment of apprehended per- 
sons in station houses and discourtesy directed at civilian in- 
quiries. 165 The annual report thus enabled the PAB to expose the 
most persistent sources of citizen irritation in the interest of 
enabling the police both to improve their services and to enhance 
their public image. Finally, a prominent Philadelphian has noted 
he remembers no occasion prior to the board's operation in which 
the police department had ever disciplined an officer solely on the 
basis of a civilian complaint. 166 

The successes of civilian review have been counterbalanced by 
marked failures, some of which are probably unique to the Phila- 
delphia experience. Few complaints were filed with the PAB. 
The number exceeded 100 only in 1964, and the annual rate of 
complaints received evinces an erratic, rather than an upward 
trend. 167 The diminutive community response to the board was 
partly attributable to its lack of publicity. As a result of limited 
press coverage and a non-existent publicity budget, many citizens 
knew nothing of the board's operation or even its existence. 168 
There is also suspicion that some policemen actively discouraged 
complaints on infrequent occasions. 169 

In addition to being relatively ignored by the citizenry, the 
PAB encountered difficulties maintaining its impartial image. 
The board often compensated for an indigent complainant's in- 
ability to secure counsel by developing the case for him during 
hearings. 170 This procedure might at times have induced a police- 
man to suspect the board was biased against him. Positing all 
investigative authority over civilian complaints in the police de- 
partment not only advertised the PAB's dependence on police 
rather than civilian judgment in the critical initial inquiries, 
but also produced unjustifiable delays as well. Approximately 
half the investigation reports were not returned to the board 
within 90 days of referral to the police department, and a sizable 
backlog of unresolved cases accumulated. 172 This lag, combined 
with other procedural delays, partially explains why many citi- 
zens failed to follow their initial complaints through to ultimate 
disposition. Finally, the PAB, having been created by mayoral 
fiat in 1958, was a political creature of unascertainable life and 
tenuous authority. Frictions with the mayor and a court chal- 
lenge of its legality engendered periods of uncertainty and com- 
promise in the board's early history, 172 and normal board opera- 
tions have been suspended since mid-1967, when the Fraternal 
Order of Police successfully enjoined its hearings. 173 



390 Report of the Task Force on Law and Law Enforcement 

Apart from the particularized shortcomings of the PAB in 
Philadelphia, its record reveals institutional deficiencies that will 
plague any civilian review board of the future. The PAB was 
subjected to the same kind of vehement police attacks that led to 
the abolition of the CCRB in New York City. 174 The police 
claimed that civilian review lowers police morale, undermines 
respect of lower echelon officers for their superiors, and inhibits 
proper police discretion by inducing fear of retaliatory action 
before the board. 175 The advisory nature of the PAB and its in- 
frequent disciplinary recommendations may impeach the credi- 
bility of such allegation. But police hostility to the review board 
cannot be underestimated. 

Probably the real issue here is that, despite their monopoly on 
the use of force, policemen fiercely resent being singled out 
among all other local governmental officials for civilian review. 
Implicit in the board's very existence seems to be an assumption 
that policemen are characteristically arbitrary or brutal and 
have to be watched. Since policemen apparently believe that civil- 
ian review boards symbolize society's contemptuous discrimina- 
tion against him, the ill feeling the institution provokes may not 
be worth the benefits it may confer. Indeed, the high controversy 
associated with the term "civilian review board" suggests the 
appellation will not be attached to any future grievance response 
agencies. 

Another source of police antagonism may have been the ad- 
versary nature of the PAB's hearing procedures. The adversary 
process is not only costly and protracted, but when complainant 
and policeman are pitted against each other in formal opposition, 
hearings convey the appearance of a battleground. 176 As a conse- 
quence, the civilian review board seems in some ways to aggra- 
vate, rather than minimize, the frictions between police and 
community. Yet the object of external review should be improve- 
ment of existing police services, not establishment of a rival 
police department. To the extent that a board departs from 
ameliorating tensions through informal conciliation and moves 
toward affixing blame in formal adjudication, it fails to improve 
police-community relations. 

To relate the defects of civilian review boards is not, however, 
to reject the concept of civilian review itself. Both the Kerner 177 
and Crime Commissions 178 recognized the importance of inde- 
pendent non-judicial review of police conduct, and yet also did 
not recommend that civilian review boards be established in 
cities where they did not already exist. Indeed, the qualified 
achievements of the review board seem to have flowed more from 
the merits of external surveillance than the mechanism that 
seeks to achieve it. If civilian review can be institutionalized so 
as to placate rather than polarize police-citizen differences, its 



Securing Police Compliance With Constitutional Li